Tips When Drafting Your Last Will and Testament

  1. If you recently moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer to be sure that it is properly executed according to the laws of Florida, and that your personal representative is qualified to serve in Florida.
  2. If you marry after the creation of your will, while your will is still valid, it is our recommendation that you revisit the terms of your will. In Florida, if a spouse is acquired after the execution of a will he or she may receive the same portion of your estate had you passed without a will (at least one-half). Therefore, it is important to revisit the terms of your will if your marital circumstances change to ensure that your intentions are still being honored.
  3. Before your will is effective to dispose of your property, it must be proved in the probate court.  If the will is self-proving and otherwise valid, it may be admitted to probate without further proof.  If the will is not self-proving, it generally must be proved by the oath of one of the witnesses.  The oath must be given before a circuit judges, clerk of court, or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted by law.)  A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death.  For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will.  An appropriate form of certificate is prescribed by Florida law.  The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.
  4. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should have a will regardless of the value of the property.

Additional documents that should be considered for signing when you having your will drafted:

  • Living will: Florida Statutes now provide for a written declaration by an individual specifying direction as to use of life-prolonging procedures.
  • Durable Power of Attorney: This document can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in court.  This is especially valuable for paying the bills and protecting the assets of an incapacitated person.
  • Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so.  Included in this important appointment is the power to decide when to withdraw medical procedures.
  • Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death.  If you fail to designate a guardian, the Court will do so for you, if and when it becomes necessary.

If you die without a will (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by law in the state in which you are a resident.  Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely.  In other words, if you fail to make a will, the inheritance statute determines who gets your property.  The inheritance statute contains a rigid formula and makes no exceptions.

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