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Frequently Asked Questions

(The following information applies in the state of Florida only.)

+ What is a Will?

See General FAQ, not state specific.

+ What If I Die Without a Will

dying without a will you are “intestate”. This means that the state, not you, decides how your property is to be distributed. Florida’s rules for intestate succession say that your property will be distributed in the following manner:

*If your spouse survives you, your spouse receives:

– All of your property if you leave no children

– $60,000.00 plus _ of your remaining estate if you leave children that you had with that surviving spouse

– 1/2 of your estate if you leave children that you had with someone other than that surviving spouse.

*If you have no surviving spouse, or all property is not given to your surviving spouse is distributed to the following persons:

– Your children in equal shares, or if you have none, to their issue, or if you have none;

– Your parents, or if you have none;

– Your brothers and sisters, or if you have none living, their children, or if you have none;

– Your grandparents (1/2 to your father’s side and 1/2 to your mothers side), or if you have none, their children (i.e. your uncles and aunts), or if you have none.

– The kindred of your last deceased spouse, or if you have none

– The State of Florida

+ What are the Legal Requirements for a valid will

Every will must be in writing and the testator must sign at the end of the document. If the testator is unable to sign the document his or herself, the document may be signed by another in the testator’s presence at the testator’s request.

The documents must be signed or acknowledged in the presence of two witnesses who must sign in the presence of each other and in the presence of the testator.

Florida does accept self-proving wills. A self-proving will is a regular will but includes a page signed by the witnesses to the will. This page states that the witnesses attest to the signing and soundness of mind of the testator. The purpose of this page is to have the page and signatures be accepted as proof of the testators signature and state of mind rather than needing to find the witnesses and obtain their testimony upon the testator’s death. In Florida, the will may be made self-proving at the time it is signed or at anytime thereafter. The attestation of the witnesses for the self-proving will needs to be done in front of a notary in Florida.

In Florida, someone who is receiving something through the testator’s will or codicil can also be a witness to the signing of the will or any codicil to the will.

+ What is Probate?

See General FAQ, not state specific. Probate in Florida must occur in the county where the decedent was domiciled at the time of his death.

+ What is the difference between a Specific vs. General Gift?

See General FAQ, not state specific.

+ Should I appoint a Guardian for my Minor Children?

See General FAQ, not state specific.

+ What happens to my debts?

See General FAQ, not state specific.

+ Should my Will Create a Trust?

See General FAQ, not state specific.

+ Can I Change or Completely Revoke my Will?

You can make changes to, or revoke your will at any time. There are, however, some important rules to follow.

One way to change your will is to make a codicil, which is an amendment to your will. Another way is to make an entirely new will which revokes and takes precedence over any and all older wills.

A codicil is a separate document and must be signed and witnessed the same as a regular will or it will not be honored. Because of these requirements, it is generally easier just to make a whole new will.

It is important not to make any markings on your will once it has been witnessed and signed. This is absolutely vital. If you cross out a name or add any other writings to a will that has already been signed, you risk making the whole will invalid.

To revoke a will without making a new one all you have to do is intentionally tear it up, deface it, or otherwise destroy it. If this occurs accidentally, you will is not invalidated.

It is important to remember that in Florida, if you intentionally revoke a will by tearing it up or destroying it, it also automatically revokes all codicils associated with that will. This act will not automatically revive past wills you may have written, instead it leaves you with no will until you properly execute a new one.

+ What happens if I marry, divorce, or have children after I sign my will?

In Florida a will and its codicils are not invalidated or revoked because of a later marriage or birth of a child. In such a case the surviving spouse and/or child will be entitled to the appropriate share as though the testator died intestate (see above). This is true unless the will and/or codicil shows that the spouse and/or child was intentionally excluded from the will and/or codicil.

+ Will the Federal Estate Tax Effect My Estate?

See General FAQ, not state specific.

+ Is my out-of-state will valid if I move to Florida?

See General FAQ, not state specific.

Foreign wills (wills executed in a state other than Florida) will be recognized by the state of Florida as valid if the will is valid under the laws of the state where it was executed.

+ Can I make a handwritten will?

Handwritten wills or holographic are not recognized in the state of Florida, however if a will is entirely handwritten by the testator but still executed properly, as stated above, the will is not considered “holographic” and this will be accepted by the state of Florida.

+ Do I have to file my will with a court or in public records?

In Florida this is not required.

+ Can I disinherit someone?

Depending on who it is you wish to disinherit, the answer varies.

In Florida, you may leave your spouse out of your will, but unless you have signed a valid prenuptial or postnuptial agreement your spouse will be entitled to what is called the “elective share&quot. In Florida the spouse would be entitled to 30% of your estate through this elective share. If your spouse is going to take an elective share of your estate this request must be filed within 6 months of the date of service of a copy of the notice of administration or within 2 years after the date the decedent died. This request must be filed with the county where the estate is probated.

In Florida you may disinherit your children or any other relatives. To ensure that it is clear that you are intentionally disinheriting an individual it helps to state this in your will so there can be no question about what you intended.

+ What should I do with my will after I sign it?

After you sign your will, you should keep it in a safe place that is easily accessible. Out clients will often store their original documents in our fireproof files where they cannot be easily destroyed or stolen. Be sure that the person you have appointed as your personal representative knows where you have placed your will. If you store your documents in our fireproof files, your personal representative need only prove that you have died for the documents to be released to them.

Many people keep their wills and other important documents in their safe deposit boxes. Though these documents may be safe from fire and theft in a safe deposit box, your personal representative may have a difficult time accessing these documents when they are needed. Because of the delays and complications that can arise with the use of safe deposit boxes for this purpose, it is not recommended that these be used for the safekeeping of documents such as these.

+ Where can I get my will notarized?

Your bank is an excellent place to locate not only a notary, but also witnesses for your documents.

+ Do I need a Lawyer to Make a Will?

As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.

+ Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?

No. Jointly Held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.

+ Can I Use My Will to Care for a Special Needs Person so They Still Qualify for Their Government Programs?

Yes, if done properly. This is a rather complex area of the law and the terms in your Will must be exact. But, if done properly a Special Needs Trust can be created to care for a Special Needs Person while keeping the Person on their existing government programs.

+ Can I Put My Funeral Arrangements in my Will?

Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.

+ How Often Should I Review My Will?

Will reviews are situational, but as a general rule you should review Will terms annually. At our firm we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.

+ Can a Will help Reduce Death Taxes?

The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law and you should work closely with your Estate Planning Lawyer.
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