August is National Make-a-Will Month, making it a good time to talk about one of the most familiar, and often misunderstood, parts of Estate Planning: the Will.
Most people know they probably should have a Will. But many aren’t exactly sure what a Will does, what it doesn’t do, when it needs to be updated, or what happens if they never create one.
A Will is an important part of many Estate Plans, but it isn’t the entire plan.
Here are some of the most important things Florida families should understand about Wills.
What Is a Will?
A Will is a legal document that provides instructions about how certain property should be handled after your death.
In Florida, a person who is of sound mind and is at least 18 years old—or an emancipated minor—may make a Will.
A properly prepared Will can allow you to make several important decisions in advance, including who should receive certain property and who you would like to serve as the Personal Representative responsible for administering your Estate.
For parents of minor children, a Will can also be used to nominate a guardian.
Without a Will, you give up the opportunity to make some of these decisions yourself.
What Makes a Will Valid in Florida?
Simply writing down your wishes does not necessarily create a valid Florida Will.
Florida has specific requirements for executing a Will.
Generally, the Will must be in writing and signed at the end by the person making it, called the testator. The signing or acknowledgment must occur in the presence of at least two witnesses, and the witnesses must also sign in the presence of the testator and each other.
Those formalities matter.
A document can express exactly what someone wanted and still create serious problems if it wasn’t properly executed.
That is one reason we encourage people not to think of a Will as simply another form to complete.
What Can a Will Do?
Depending on your circumstances, a Will can help you:
- Identify who should receive your Probate assets.
- Nominate the person you would like to serve as Personal Representative of your Estate.
- Nominate a guardian for minor children.
- Address certain gifts to individuals or charities.
- Provide instructions for the administration of your Estate.
- Create certain trusts that take effect after death.
Most importantly, a Will gives you an opportunity to make these choices yourself rather than leaving certain decisions to Florida law.
What Doesn't a Will Do?
This is where many people are surprised.
A Will does not necessarily control everything you own.
Some assets can pass outside of Probate depending on how they are owned or whether a beneficiary has been designated.
Examples may include:
- Life insurance with a valid beneficiary designation.
- Retirement accounts with designated beneficiaries.
- Certain payable-on-death or transfer-on-death accounts.
- Property owned jointly with rights of survivorship.
- Assets properly titled in a Trust.
That’s why Estate Planning involves much more than preparing a Will.
Your Will, beneficiary designations, property ownership, Trusts, deeds, and other planning documents should be considered together.
Does Having a Will Avoid Probate?
This is one of the biggest misconceptions we hear.
Having a Will does not automatically mean your Estate will avoid Probate.
A Will generally provides instructions for the administration and distribution of your Probate Estate.
Whether Probate is necessary depends largely on what assets you own at death and how those assets are titled.
Some assets may pass directly to another person outside of Probate. Others may require Probate before ownership can legally be transferred.
A Will can make your wishes clear, but it is not, by itself, a Probate-avoidance tool.
What Happens If You Die Without a Will in Florida?
Dying without a valid Will is called dying intestate.
Contrary to a common misconception, that does not ordinarily mean the State of Florida simply takes everything you own.
Instead, Florida’s intestacy laws determine who is entitled to inherit your Probate Estate.
Who receives property can depend on your particular family structure, including whether you leave a surviving spouse, descendants, parents, siblings, or other relatives.
The important point is this:
If you don’t make certain decisions yourself, Florida law may make them for you.
The result under Florida law may, or may not, be the result you would have chosen.
Can You Leave Your Property to Anyone You Want?
Not always.
Florida law provides important protections for certain surviving family members, particularly when Florida homestead property or a surviving spouse is involved.
That means Estate Planning is not always as simple as writing, “I leave everything to ___.”
Your family structure, how your assets are titled, and the type of property you own can all affect what planning options are available.
This is particularly important for blended families and people who own Florida homestead property.
What About Jewelry, Family Heirlooms and Personal Belongings?
Some of the most meaningful things we own aren’t necessarily the most valuable.
Jewelry, artwork, furniture, collections, photographs, and family heirlooms can carry enormous sentimental value.
Florida law allows certain tangible personal property to be addressed through a separate written statement or list if the Will properly refers to such a writing and the statutory requirements are satisfied.
That can provide flexibility when deciding who should receive particular personal belongings.
And sometimes making those decisions ahead of time can prevent disagreements over items that have more emotional value than financial value.
Can You Change Your Will?
Yes.
Your Estate Plan isn’t frozen for life simply because you’ve signed it.
A Will can be changed or replaced while you have the legal capacity to do so, but changes must be made correctly.
Writing new instructions in the margins, crossing out someone’s name, or making handwritten edits to your signed Will is not the proper way to update it and can create problems later.
If your wishes change, talk with an Estate Planning attorney about properly updating your documents.
When Should You Review Your Will?
You don’t necessarily need to change your Will every year.
But there are certain life events that should prompt you to pull out your Estate Plan and take another look.
Consider reviewing it after:
- Marriage or divorce.
- The birth or adoption of a child.
- The birth of grandchildren.
- The death of a beneficiary or someone named in your documents.
- A significant change in your financial situation.
- Purchasing or selling significant property.
- Moving to Florida from another state.
- Changes in important personal relationships.
- A significant change in your wishes.
Even if nothing dramatic has happened, reviewing your Estate Plan periodically can help ensure it still reflects the life you have today.
What If You Moved to Florida With a Will From Another State?
Don’t automatically throw it away and start over.
Florida law recognizes certain Wills executed by nonresidents if they were validly executed under the laws of the state or country where they were created, subject to important exceptions.
However, moving to Florida is still a very good reason to have your existing Estate Plan reviewed by a Florida Estate Planning attorney.
Florida has its own laws involving Wills, homestead, spouses, Personal Representatives, and Probate.
The question isn’t simply whether your old Will is technically valid.
The better question is:
Does this Estate Plan still accomplish what I want now that I live in Florida?
Where Should You Keep Your Original Will?
Once you’ve created your Will, make sure the original can actually be found.
Keep it somewhere safe and tell at least one trusted person where your Estate Planning documents are located.
After someone passes away, the family may need the original Will for the Probate process. A perfectly prepared Will isn’t very helpful if no one knows where to find it.
Avoid making your family search through filing cabinets, boxes, computers, and safe deposit boxes while they are grieving.
Is a Will Enough for a Complete Estate Plan?
For many people, no.
A comprehensive Estate Plan may also include documents that protect you during your lifetime, not simply after your death.
Depending on your needs, those documents may include:
- Durable Power of Attorney.
- Health Care Surrogate Designation.
- Living Will.
- HIPAA Authorization.
- Trust planning.
- Deed planning.
- Other documents based on your family and circumstances.
A Will answers important questions about what happens after death.
But Estate Planning should also consider an equally important question:
What happens if you’re alive but unable to make decisions for yourself?
That’s why we look at Estate Planning as a complete plan rather than a single document.
Make-a-Will Month Is About More Than Making a Will
National Make-a-Will Month is a useful reminder, but the goal isn’t simply to check “make a Will” off your to-do list.
The goal is to make informed decisions.
Who do you trust?
Who should make decisions if you can’t?
Who should receive your property?
Who should care for your children?
Are your beneficiary designations consistent with your wishes?
How is your home titled?
And would the plan you have today actually work the way you expect?
If you don’t have a Will, August is a great time to begin that conversation.
And if you already have one, Make-a-Will Month can be your reminder to pull it out, read it, and make sure it still reflects your life today.
At the Law Office of Lori Vella, we help Florida families understand their Estate Planning options in plain English so they can make informed decisions for themselves and the people they love.
This article provides general educational information and is not legal advice. Estate Planning is fact-specific, and you should speak with an attorney about your individual circumstances.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.