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What is a Last Will and Testament?
A Last Will and Testament (often just called a “Will”) is a document used to distribute a person’s assets (bank accounts, investments, car, real estate, etc.) to the beneficiaries of their choice (and can specifically disinherit certain people). Relying on a Will necessitates utilizing the probate courts to process the Will, pay creditors, and distribute assets to heirs.
We often recommend steps to avoid having to rely on the Will (and thus avoid the added expense and delay involved with the probate process).
Requirements for a Last Will and Testament to be Valid in Florida
The Will must be in writing, signed by the testator, in front of two attesting witnesses (all three in the same room signing in front of each other).
Does a Will Have to be Notarized in Florida?
While its not a requirement. Florida has an option to make a will “selfproving.” This speeds up the probate process – by allowing the probate court to accept the will without contacting the witnesses. This Self Proving Will Affidavit must be notarized. So, while, technically wills do not need to be notarized, for all practical purposes, they almost always are.
What Happens if You Pass Away Without a Will in Florida?
A Floridian who dies without a will is referred to as “intestate.” In this scenario, the statute has a list of those who receive the deceased’s property in a particular order depending on who survives the decedent. As just one example, if the deceased is survived by a spouse and children from another relationship (i.e. not the biological children of the surviving spouse), the surviving spouse receives half of the probate estate and the decedent’s children share the remaining half.
Do Wills Have To be Filed in Probate Court?
If your heirs are relying on the Will to receive their inheritance, then yes, it must be filed along with a death certificate. If you pass away intestate, a probate must also be opened.
What is Probate?
Probate is a court-supervised process for identifying and gathering assets of the deceased; then notifying creditors (and giving unknown creditors and opportunity to submit their claims) and then distributing whatever is left over to heirs.
How to Avoid Probate?
Some common probate avoidance tools are:
Lady Bird Deeds for Real Estate. Click on one of the following links for more information on Lady Bird Deeds:
What is a Lady Bird Deed?
Lady Bird Deed vs. Revocable Living Trust for Real Estate in Florida
Do I need a Lady Bird Deed to Qualify for Medicaid?
Lady Bird Deed Risks
Utilizing Pay on Death Beneficiaries. This requires no legal assistance . You can literally walk into your bank or call your financial /advisor/retirement plan custodian to list who you want to benefit from your liquid assets after you pass away. This “pay on death” or “transfer on death” designations will avoid probate.
The issue becomes – what happens if one of these payees predecease you? At that point, a probate would be needed. To avoid this, and to plan for multiple contingencies, a Revocable Trust is in order.
But for some of my clients who may have one small bank account, their homestead, and one living heir. For this situation, especially on a budget, a lady bird deed along with a pay-on-death designation may be sufficient estate planning.
Revocable Living Trusts (for financial assets and/or real estate)