DIFFICULTY: Legal help may be required
Initial Filing Fee: $0
Having a will allows the state of Florida to know how to allocate your resources among your beneficiaries. If you do not have a will, your estate will be distributed according to Florida inheritance laws, which are very rigid and unforgiving. In order to assure that everyone you want to benefit from your estate does, you must ensure that your Will is executed correctly and legally. A Will does not go fully into effect until after your death.
Step 1: Create Your Will
In Florida, there are a number of requirements that you must meet before you can draft a Will. You, “the testator,” must be over the age of 18 and of sound mind at the time of the Will’s drafting. It is important to ensure that all of your assets are clearly accounted for and allocated in your Will, to prevent any confusion that may allow your beneficiaries to contest it. Modeling your will on a pre-existing one can make the process easier. If you are at all uncertain about how to do this, or if your estate is especially complicated, it is a good idea to get help from an attorney.
It is important to note that there are some types of property that cannot be allocated in a will. Under Florida law, a homestead (property upon which you live with either a spouse or a minor child) cannot be left to beneficiaries other than that spouse or child. Similarly, life estates (property owned only for the lifetime of the owner) and property owned jointly with another person cannot be allocated in a Will. It is against Florida law to disinherit a spouse without that spouse’s written consent. In the event of your death, any spouse left behind has the option of adhering to the text of your Will, or claiming a percentage of your estate as determined under Florida’s elective share law. This usually amounts to one half of your estate, though the formula used is quite complicated and requires an attorney to properly execute.
Step 2: Verify your Will
The will must be written, as well as witnessed and notarized according to Florida law. You will need a self-proof of will, which is a letter signed by you and your witnesses affirming that the Will is in order. Once you are satisfied, the Will must be submitted to probate court, where it will be approved.
Your original Will should be kept in a safe location, preferably a safe deposit box, or in a fireproof box kept in your home. Ensure that you are not the only one who knows where the Will is kept; tell your attorney and your witnesses. The Will does you no good if nobody can find it.
Step 3: Update Your Will
Do not make any changes to the text of the Will itself after it is approved. Any writing or striking on the text itself may invalidate the Will in whole or in part. If you need to change your Will later, you can either write a new one, or submit a “codicil,” which is an amendment that has the same authority as the original Will itself.
You should re-read the text of your Will periodically, to ensure that you still agree with its terms. It is also a good idea to update your Will after any major life changes, such as marriages, having children, changing jobs, moving, etc. When you create a new Will, ensure that all copies of the old Will are destroyed or marked as invalid so that there is no confusion as to which is the most recent when you die.
It is also worth drafting a living Will, which will instruct your loved ones what to do if you ever end up in a coma or a vegetative state, or develop a mental condition that does not allow you to make decisions for yourself.