Do You Have A Legally Valid Will?

An individual’s Last Will and Testament can be the cornerstone of a sound estate plan. However, crafting a valid Will that anticipates and makes provisions for the numerous eventualities that may arise during the probate process can be both difficult and time-consuming. Working with an estate planning attorney can help you to understand your options and craft a document that constitutes not only a legally valid Will, but a practically effective one. Call 561-559-6214 to set up a conversation with Loughlin Law, P.A. to discuss your situation.

How Do Wills Work?

A Last Will and Testament is a legal document in which an individual lays out instructions for how they would like the property they leave behind to be disposed of after their death. The prerogatives of the testator – the individual who creates a Will to express their wishes – are not without limits, as the Will must go through probate, and certain claims on the deceased person’s estate must be satisfied, before any assets remaining can be distributed in accordance with the testator’s instructions. Nevertheless, a Will can be a powerful document, allowing an individual to exert a degree of control over how the disposition of their property will dispose after they themselves have passed away not otherwise available.

Who Can Make a Will?

Generally speaking, any legal adult who is “of sound mind” is eligible to create a legally valid Will in Florida. Minors cannot create valid Wills unless they have been emancipated, per § 732.501, Florida Statutes; the right to dispose of property may be removed from individuals subject to a determination of legal incapacity under Chapter 744, and potentially delegated to the individual’s court-appointed guardian.

What Are the Requirements for a Legally Valid Will?

Technically speaking, the legal parameters for who can create a Will, as well as the specifications a Will must adhere to in order to be considered legally valid, are set by the laws in each individual state. However, while most states maintain broadly similar standards regarding the legal adulthood and soundness of mind (sometimes called “competence” or “capacity”) required of testators, there tends to be a somewhat greater range of variation in the legal requirements for the documents themselves.

Requirements for a legally valid Last Will and Testament in Florida are laid out in § 732.502, Florida Statutes, and include:

• The Will must be in writing (no oral, otherwise known as “nuncupative” Wills).
• The testator must either sign the Will at the end of the document or direct another person to sign the Will on his or her behalf, in the testator’s presence (i.e., the testator must witness the signature being added to the Will at his or her direction); notably, this step must be completed in the presence of witnesses who also add their signatures to the document.
• The Will must be signed by at least two “attesting” witnesses, in the presence of each other and the testator; their attestation affirms that they have witnessed the testator sign the Will, acknowledge the Will, or direct another to sign the Will on his or her behalf.

Oral Wills are strictly prohibited under Florida law, not least because for obvious reasons such Wills cannot meet the requirements for signatures. “Holographic” Wills, which are written entirely in the handwriting of the testator and signed by him or her but may not include witness signatures, are also prohibited. Handwritten Wills that meet the requirements for witness attestations outlined above are not considered to be holographic under Florida law, and may be admitted to probate; however, a handwritten Will is not generally recommended under most circumstances. Specific requirements for executing and “self-proving” the validity of an electronic Will are specified under § 732.523. An estate planning attorney with Loughlin Law, P.A. may be able to guide you through the process of creating a legally valid Will and answer any questions you might have along the way.

Will a Will Created in Another State Be Valid in Florida?

A holographic or nuncupative Will is not generally recognized as valid in Florida, regardless of where the Will was created. Florida § 732.502(2) establishes that any Will created outside of those two categories is a valid Will in Florida as long as it meets the criteria for validity in the jurisdiction where it was originally executed.

What Are the Different Types of Wills?

The most common type of Last Will and Testament is sometimes referred to as a “simple” Will, although – as the Florida Bar Association explains – this is something of a misnomer, as even the estates of individuals with relatively limited assets can at times present surprisingly complex questions during probate. The type of document sometimes called a “simple” Will is usually one which is not a “joint” Will (occasionally used by spouses who hold most of their property jointly), and which is not constructed in such a way as to necessarily involve other estate planning tools.

Most estate planning tools can be used alongside a Will, but there are two types of Wills expressly designed to be used in conjunction with a trust, and which only function as intended when the trust is also established and managed effectively:

• Testamentary Trust Wills – These Wills contain a “trust instrument” (the document used to establish a trust) and include specifications for the appointment of the trustee, the designations of beneficiaries, and the terms under which the trust is to be administered. The trust is only created as a result of probating the Will.
• Pour-Over Wills – Wills in this category are created to make use of a trust that is already in existence at the time of the Will’s creation. The Will is written so as to direct the personal representative of the estate to “pour over” into the trust any and all assets remaining after the rest of the probate process has been completed.

As a general rule, in most circumstances it is more effective and efficient to identify your estate planning goals and set about working with an estate planning attorney to develop a Will and estate plan based on those priorities than to start by trying to choose a type of Will and then suit it to your needs. A consultation with an experienced Florida attorney may help you to determine which options make the most sense in your situation.

Get Help Writing a Will

Creating a Last Will and Testament can be a daunting task. In addition to accurately accounting for all of your personal property and clearly directing how you would like for your possessions to be disposed, you must ensure that you have met all the criteria for legal validity established under Florida’s laws. The estate planning team at Loughlin Law, P.A. may be able to help you craft a legally valid Will that clearly expresses your wishes. Call 561-559-6214 today to set up a consultation.