What is a Last Will and Testament in Florida?

Many Florida residents have a romantic view of the reading of a deceased person’s Last Will and Testament in front of the collected family, all of whom are surprised by the inheritances they receive. While formal readings are no longer common, a Will remains an important part of your estate plan. Understanding what a Last Will and Testament is and how it is treated in the Florida probate courts can help you create a robust estate plan that will prepare for your final days and your family’s future after your death.

What is a Last Will and Testament?

A Last Will and Testament is a formal legal document that directs what will happen to your assets after your death, and directs who should be responsible for carrying out your wishes. It is a tool you can use to direct your final affairs and ensure your intended beneficiaries are provided for after your death.

If you die in Florida without a Will, the state has strict “intestacy laws” that divide up your assets among your closest natural heirs – most often your surviving spouse and your children. These default inheritance laws may seem logical if you intend to leave your assets to your family, it is important to remember that you (or your family) will have little control over which assets go to which heirs. Because inheritance is based on value, often your property will need to be sold to satisfy the law.

A Last Will and Testament allows you to avoid this unintended outcome. It allows you to designate which beneficiaries will receive what portions of your assets, including designating specific items like heirlooms that you wish to pass on. Those beneficiaries aren’t limited to your immediate family. You can include friends, family, and even charitable organizations.

Common Items Included in a Florida Will

Your Last Will and Testament can be customized to fully reflect your final wishes. Your Will may include provisions that:

• Names a personal representative or executor to administer your estate (with alternates).
• Designates a guardian to care for minor children or disabled dependants (with alternates).
• Describes your assets, accounts, and personal property and describes who should inherit those items as specifically as you like.
• Establishes a trust to hold assets for your heirs’ benefit.
• Includes beneficiaries who would not be entitled to inherit under Florida’s intestacy laws.
• Excludes natural heirs who you don’t want to receive assets after your death (except that you can’t entirely exclude your surviving spouse without a prenup or postnup).
• Describes what should be done with real property, homes, vehicles, and other titled assets (given the limits of the Florida Homestead exemptions).
• Accounts for electronic assets including cryptocurrency, cloud-storage files, and social media accounts.
• Specifies your funeral and burial wishes.

Not every Will must contain all these provisions. By selecting the terms that best suit your needs, you can make certain that your wishes are met.

Will Florida Honor a Handwritten Will?

Florida does not recognize so-called “holographic wills” – a Last Will and Testament written in a person’s own handwriting – simply because of the handwriting. This includes handwritten edits to an existing estate plan. Instead, to create a valid Will in Florida, you will need to meet all the same requirements that an estate planning attorney has to follow:

• The Will must be signed by you at the end of the document
• The document must be signed in the presence of two attesting witnesses

Given the requirements, there is no benefit to executing a holographic will rather than working with an estate planning attorney. In addition, holographic wills and other self-made estate plans are vulnerable to ambiguity. Whether because of trouble reading your handwriting, or because of the word choices you select, your Will may not be executed according to your wishes. Without the help of a lawyer, you may leave gaps or contain confusing terms that the Florida probate court will need to interpret and enforce.

What a Last Will and Testament Doesn’t Cover

A Last Will and Testament is an important part of any estate plan, but it generally is not enough to address all your needs during your final illness. A Will does not apply to medical or financial decisions made before your death (even if you are incapable of making those decisions yourself). Instead, you will need to execute separate powers of attorney and related documents to control that part of your estate. If you don't, your loved ones may need to file a petition for a Guardianship in Florida probate court to assist in your care.

Wills also do not apply to certain types of property:

• Property held jointly with someone else
• Assets owed by a revocable trust
• Life insurance benefits with beneficiaries designated
• Pensions, retirement accounts, or investment accounts with designated beneficiaries
• Money held in payable-on-death or transfer-on-death accounts

Estate planning attorneys often use these exceptions to create an estate plan that minimizes the role the Florida probate court plays in overseeing the distribution of your assets, as well as reducing the estate taxes your loved ones will have to pay after you are gone.

What to Do With Your Will After It is Executed

A Last Will and Testament is only truly beneficial if your loved ones know where it is, and what it says. Remember that a Will is intended to communicate your wishes after you are no longer present to express them yourself. The best way to ensure it is honored is to communicate your wishes with those named in your Will after it is executed. At minimum, you should advise your preferred personal representatives that you have executed a Last Will and Testament, and where it is located. You may also want to communicate the terms of your Will and who will receive your assets (along with any excluded heirs). This can prevent your family members from successfully challenging your Will in the Florida probate court based on “undue influence” or other claims that you did not intend the awards described in your Will.

Get Help Preparing Your Last Will and Testament

Harrison Estate Law is happy to help you write and execute your Last Will and Testament and complete estate plan. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call. We have extended evening and weekend appointments available by request.