Wills and Trusts, What is a Will in Florida? Technically referred to as a Last Will and Testament, a will, as it is commonly called, is a legal document prepared to designate and protect beneficiaries, assets, and personal items in the event of a persons death.
The purposes of a Will includes:
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Provisions for distribution of property, assets and personal items to beneficiaries.
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Authorize an individual to legally raise a minor child or minor children.
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Implicate an individual to oversee assets to provide for minor children.
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Nominate a Personal Representative to insure the instructions of the decedent contained in the will are enforced and completed.
Do You Have To Have a Will Under Florida Law?
You are not legally mandated to have a will in Florida. However, if a valid will does not exist, what happens to property, assets, and personal items will be determined according to Florida’s intestacy regulations. This simply means that your assets will be distributed in accordance with Florida Statutes, which determine the nearest next of kin that is to inherit your assets. If the decedent is not married and has no surviving children, his or her property will be administered to his or her parents if they are living. If none of these blood relatives are living, the state then seeks the closest relations it can discover to distribute the property, such as a brother, sister, aunt, uncle, cousin, etc. If after a diligent search, no applicable blood relative can be found, the state will take control of the property.
While both a will and a living trust are essential estate planning tools in Florida, they serve different purposes and function in distinct ways. A will is a legal document that outlines how your assets will be distributed after death and must go through probate. A living trust, on the other hand, allows you to transfer ownership of your assets while you're alive and helps bypass the probate process entirely. With a trust, you retain control of your assets and designate a successor trustee to manage them if you become incapacitated or pass away.
The main difference between a will and a living trust is how and when they take effect. A will becomes active only after death and is subject to court oversight during probate. A living trust takes effect immediately upon creation and can manage your assets during your lifetime and after death without court involvement. Trusts offer privacy and efficiency, while wills are simpler and less expensive to create. Depending on your goals, a Florida estate planning attorney can help you determine whether a will, a trust, or a combination of both is best for your needs.
Is An Attorney Required to Create a Will In Florida?
A will can be a very simple legal document that can be prepared solely by an individual if they acquire the specific forms necessary under Florida law. There are circumstances, however, where the aid of an attorney is highly recommended. For instance, if there is a large amount of property owned in conjunction with other parties or a person thinks someone may try to state they have a claim when that is not the case, it is highly advised to consult an attorney to draft the will. Furthermore, Florida has requirements for the proper execution of a will in order for a will to be valid. It is recommended that you seek the assistance of a lawyer to draft and help execute your will so that your final wishes are properly prescribed and your will is legally enforceable.
Does a Will Have to Meet Certain Regulations in Florida for it to Be Legal?
Florida does require specific criteria for a will to be valid and enforceable upon an individual’s death. These requirements include:
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There must be two witnesses to the will that are present at the time the will is executed by the person making the Will.
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Those witnesses must be of legal age, which is age 18 in Florida.
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Those witnesses must also place their signatures on the document.
Is There Any Other Legal Verification Required for a Will to be Valid in Florida?
You do not have to involve a notary republic in order for the will to be valid, but Florida does have a regulation where an individual can create a self-proving will. In that case, a notary will have to be involved to bear witness to the signatures of all the parties and incorporate an affidavit to be signed by the witnesses. The benefit of a self-proving will is the document generally is accepted by the probate court system at a swifter rate because the court does not have to make any additional contact with the witnesses involved with the will.
Is A Will the Same Thing as a Living Trust in Florida?
No. A trust is a system within which an individual that is named as a trustee holds the legal authority over property that is granted for the benefit of a party that is referred to as the beneficiary. A person can be both the trustee and the beneficiary of a trust, which enables a person to maintain the legal authority to manage their property while still living. This arrangement is commonly referred to as a living trust because it was created while the person was still alive rather than coming into existence through their will as another form of a trust after death.
Is There An Advantage To Having a Living Trust in Florida?
The primary reason people produce living trusts is avoid additional costs and time constraints that could possibly be imposed by the probate court upon a person’s death. With proper estate planning, the probate process can be fully avoided. This can significantly reduce costs and accelerate the time frame in which your assets are distributed to your designated beneficiaries. A trust also allows you the ability to maintain some control over your assets after you pass away. For example, if you have a child that is still in college and you would like to see them graduate college before they receive their inheritance, such a provision can be drafted in a trust agreement.
Are Florida Living Trusts Successful at Decreasing Estate Tax Liabilities?
That depends entirely upon the trust you create, as they can be quite flexible. For instance, a fairly straightforward trust that is created to avoid probate will likely have no impact on federal estate tax implications. There are more complex living trusts, however, that can help reduce the federal estate tax liabilities of an estate.
If you need legal help with Will and Trusts and would like to schedule a free consultation with our Wills and Trusts Attorney, Contact our Tampa Estate Planning Attorney today or fill out our contact form. Your contact form submission will go directly to our Wills and Trusts Lawyer even if he is out of office. Please include the best time to return your call and a brief description of your Estate Planning needs.
Wills and Trusts Questions and Answers for Florida Residents
No, a will is not legally required in Florida. However, if someone dies without a valid will, Florida’s intestacy laws determine who inherits their assets. This may result in property going to distant relatives or, if no heirs are found, to the state. Having a valid will gives you control over who receives your property.
A will, formally known as a Last Will and Testament, is a legal document that outlines how an individual’s property, assets, and personal items should be distributed after death. It also allows for the appointment of a guardian for minor children and the nomination of a Personal Representative to ensure the instructions in the will are carried out.
It depends on the type of trust. A basic living trust created to avoid probate typically has no effect on estate tax. However, more advanced trust structures can be designed specifically to reduce or manage estate tax liability. Consulting an attorney is essential when planning for potential tax exposure.
Yes, Florida requires that a will be signed by the person making it in the presence of two witnesses. Both witnesses must be at least 18 years old and must also sign the will. These formalities are essential for the will to be considered valid and enforceable under Florida law.
No, a will and a living trust are different legal tools. A will takes effect after death and must go through probate. A living trust is created during your lifetime and allows you to manage and transfer assets outside of probate. A trust can also provide more privacy and flexibility for long-term planning.
A living trust can help avoid the time and costs associated with probate. It allows you to transfer assets directly to beneficiaries and can include specific conditions, such as requiring a child to graduate before receiving an inheritance. A trust also offers continued control over how your assets are managed after your death.
You are not required to use an attorney to create a will in Florida, but it is highly recommended. Florida law has strict execution requirements, and mistakes can render a will invalid. An attorney ensures the document is legally enforceable and protects your wishes, especially if your estate is complex or there is potential for disputes.