Florida’s Last Will and Testament.
One final nod to the deceased. One last chance to determine what happens to property accumulated over a lifetime. The closing chapter on a life and all it accomplished.
The Will is one of the most fundamental tools in Florida’s Estate Planning toolbox.
Yes, there are others. Trusts, Joint Accounts, Beneficiary Designations and Intestate Statutes to name a few.
But the Will, if used correctly, can work to supplement the other tools and catch any assets that may have been missed during the Estate Planning process. Kind of a belts-and-suspenders approach.
Consider the following questions in determining whether all of your assets are properly accounted for in your estate plan:
• Does Florida’s Intestate Statute really express where I want my property to go when I pass away?
• What happens to my property if I become the sole survivor of property I own as a Joint Tenant with Right of Survivorship?
• What happens to my life insurance policy, annuities, 401k and bank accounts if my designated beneficiaries die before I do?
• Am I certain all of my assets are included in my revocable or irrevocable Trust?
If you are uncertain about the answer to any of these questions, a Will is an excellent way to make sure you get to decide what happens to your property.
1. Using a Will as Your Primary Estate Planning Tool
A Will can be used as either (a) the primary tool for transferring assets to your heirs when you pass away, or (b) a supplemental tool designed to catch those assets that fall outside of a trust, joint tenancy or beneficiary designation.
If a Will is intended to be the primary tool, most of the estate’s assets will pass to the Testator’s heirs as determined by the Will’s General, Specific and Residuary Gift provisions.
Specific Gifts (or Specific Bequests) are certain items the Testator wants to leave to a specific person or entity. Items like “my leather WWII jacket,” “my Model A Ford,” or “my dog named Precious.” Specific Gifts can be real estate, personal property and even cash if a specific amount is identified (e.g. “I leave $450.00 to my nephew John”).
Specific Gifts are limited to the item described in the Will. If that item is no longer in the Testator’s estate, the gift is revoked and the beneficiary generally does not receive a replacement item.
Florida statutes also provide an alternative to Specific Gifts that can accomplish the same (or similar) results.
Florida law allows a Testator to state in her Will that she has created a list containing items of tangible personal property and that she wants the items to be distributed as indicated in the list. The items and individuals do not need to be specifically identified in the Will.
When the Testator passes away, if the list described in the Will is in existence, signed by the Testator and describes the items and individuals with reasonable certainty the list will be honored as part of the Will.
This is so even if the list was created after execution of the Will.
It is a good idea for the Testator to date the list as the most recent list will take precedent over prior lists. It is also a good idea for the Testator to store the list in a place where it will be found when the Testator passes away.
General Gifts (or General Bequests) are dollar amounts to be paid out of the general assets of the Testator’s estate and are not tied to a specific item.
Residuary Gifts (or Residue) are the remaining assets of the Testator’s estate after all General and Specific Gifts, final debts and expenses are paid.
You can also use a Will to disinherit beneficiaries from assets subject to probate. But keep in mind a Will cannot be used to disinherit beneficiaries from an asset held jointly between the beneficiary and Testator.
2. Using a Will as a Supplemental Estate Planning Tool
If a Will is intended to be a supplemental tool, the Will may contain a “pour over” clause that transfers the residue of the estate to “pour over” into a previously established trust. This allows the Testator to capture any assets that may have been intentionally or inadvertently left out of the trust during the Testator’s lifetime.
A Will can also be used to set up a Testamentary Trust that only springs into effect when the Testator passes away.
Property that is commonly passed to heirs outside of a Will by way of trust, joint tenancy or naming a beneficiary includes:
(a) Retirement Accounts, Bank Accounts, Stocks, Bonds, Certificates of Deposit and Life Insurance proceeds naming a beneficiary,
(b) Real or personal property owned as a joint tenancy with right of survivorship, and
(c) Real or personal property titled in a revocable or irrevocable trust.
So what are the basic requirements for creating a valid Florida Will?
3. Testamentary Capacity
The person signing the Will must have “Testamentary Capacity” at the time he or she executes the Will. Testamentary Capacity means he or she is:
(a) at least 18 years old or an emancipated minor,
(b) understands the nature and extent of his or her property,
(c) knows who would naturally inherit under the Will, and
(d) understands the practical effect of the Will.
If a person satisfies items (b) through (d) he or she is considered to be of “sound mind.”
Testamentary Capacity does not mean the person has to always be of sound mind. Only that the person is of sound mind at the time the Will is executed.
A person suffering from Alzheimer’s can be of sound mind during a “lucid moment” and execute a Will.
Florida courts have found instances where intoxicated, physically infirm, disheveled looking and eccentric people to be of sound mind for purposes of validating a Will.
4. In Writing, Signed and Witnessed
If the Will is executed in Florida, Florida courts will not validate it unless it is:
(a) in writing,
(b) signed by the person making the Will (the “Testator”) or by someone else at the direction of the Testator. The person must sign in the Testator’s presence, and
(c) signed by two or more competent witnesses in the presence of each other and the Testator.
If the Will is executed outside of Florida, Florida courts will look to the laws of the jurisdiction where the Will was executed to determine validity unless the Will is Noncupative.
Florida courts will recognize an otherwise Holographic (or handwritten) Will if it meets requirements 2(a)-(c) discussed above.
Florida courts will not validate a Noncupative (or oral) Will even if another jurisdiction recognizes this form of Will. An oral deathbed declaration would be an example of a Noncupative Will.
5. Witnesses Must be Competent
As noted above, at least two competent witnesses must sign the Will in the presence of the Testator and each other.
Competent means the witness is of sound mind and can provide reliable testimony to authenticate the Will. It does not mean the witness is intelligent.
Although allowed under Florida law, it is not a good idea to have Will beneficiaries or other related or interested people sign as witnesses of the Will. If a beneficiary insists on being a witness, it is a good idea to have at least two independent witnesses with no family or personal interest in the Will.
6. Self-Proving Affidavit
No matter who signs as a witness to the Will, there is no guarantee that the witness will subsequently be able to testify that the Will was executed in conformity with Florida’s statutes.
The Florida legislature has attempted to limit the issues around tracking down witnesses by allowing courts to admit Wills into probate based solely on a Self-Proving Affidavit.
A Self-Proving Affidavit is a notarized document containing the signatures and sworn statements of the Testator and witnesses that:
(a) the testator declared the document to be his or her Will,
(b) the will was signed by the Testator in front of the witnesses, and
(c) the witnesses signed in the presence of each other.
Although not required by Florida law, Self-Proving Affidavits are an invaluable tool for expediting the probate process. Otherwise, the person submitting the Will to probate will have to track down other types of proof that the Will was properly executed.
You can find Florida’s Statutory Form for Self-Proving Affidavits here.