Overview of the Creation, Revocation, and Effect of Future Events on Wills in Florida
Everyone, at some point, needs to participate in the process of arranging for what happens to their possessions after death. While it may be a very heavy topic, creating a will and/or trust to pass your property on to family or friends is a much better alternative to a drawn-out, contentious battle in probate court if people cannot agree on who should get what. While having a will is not a guarantee people will not escalate a dispute to the courts, it will at least give the judge looking at your estate a starting point when dividing your property. Having a valid will is the first step to ensuring your wishes are followed, and not the potentially biased wishes of your family or the disinterested determinations of a court. Florida law has certain requirements that must be met in order for a will to be enforceable. An overview of the basic requirements will be outlined below to help you prepare the necessary information to consult with an estate planning attorney.
Who May Create a Will and Formalities to Execute
Anyone who is of sound mind, at least 18 years old, or an emancipated minor can execute a valid will. A will must be in writing and signed by the person making the will (testator), or someone else must sign the testator’s name in the testator’s presence and at the testator’s direction. The will must also be signed in the presence of two witnesses. The witnesses must also sign the will in the presence of the testator and each other. Anyone who is competent to be a witness can witness a will and witnesses with an interest in the contents of the will are also eligible to sign. Any amendments, or codicils, to a will must be created with same formalities to be incorporated.
Florida does not recognize holographic wills or nuncupative wills, even if they were valid in the jurisdiction where originally created. Holographic wills are entirely handwritten and only signed by the testator. Nuncupative wills, usually executed by a terminally ill person, are verbal and made in presence of witnesses.
Revoking a Will
The testator can revoke a will, in part or completely, through a writing or by performing an act. Revocation by writing can happen in two ways. If later wills or codicils differ from the original will, but do not expressly revoke it, the later writings act as a revocation to the extent the documents are inconsistent. Secondly, a later will or codicil can expressly revoke the prior will in whole or part as long as it is executed with the same formalities.
To revoke a will or codicil by act, the testator personally, or someone else in the presence of the testator and at his/her direction, must burn, tear, cancel, deface, obliterate or destroy the document with the intent of revoking it.
Effect of Remarriage, More Children, and Divorce
Generally, later marriages and additional children that occur after a testator executes a will do not revoke any part of the document. However, it is possible the new spouse or child could still inherit a portion of the testator’s estate. Florida law allows new spouses or children to inherit the portion they would have received had the testator died without a will. However, this provision does not apply in certain circumstances, if:
- the testator provided for them in a subsequent will or codicil;
- the spouse was provided for or waived rights to inherit in a pre- or postnuptial agreement;
- the testator specifically excludes the spouse in a will;
- the omission of the children seems intentional; or
- the testator gave a most of the estate to the surviving parent.
Planning for the division of your property after death is a matter that takes time and careful planning. Working with an attorney experienced in estate law will allow you to fully take advantage of all your legal options when distributing your property. The Tampa firm of Bubley & Bubley, P.A., offers legal services on all aspects of estate planning and is available to assist. Contact us for a consultation on your case.