Last Will & Testament.

Put your final wishes in writing.

A Last Will and Testament is plan for what should happen to your assets and who will care for your minor children after you pass away.

A properly drafted Last Will ensures that your final wishes are documented while you are alive and then specifically followed after your death.

It is important to understand that a Last Will becomes active only after you pass away. This is a big difference from a Living Trust, which works both while you are alive and after you pass away.

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Benefits of a Last Will

A Last Will can be used for various purposes, the most common of which is to:

(i) pass on the settlor’s assets and belongings, such as money, real estate and personal property to their family or loved ones, or

(ii) donate property and money to the settlor’s favorite charity.

A Last Will may also be used by the settlor to set up a trust to provide long-term asset management and protection and to name the legal guardian of any minor children.

A benefit of creating a Last Will is that the testator can choose whom will serve as the person responsible for carrying out the testator’s wishes, so long as the person chosen is eligible under Florida law. This person is called the executor or personal representative of the decedent’s estate.

Without naming a personal representative, the decedent’s family and loved ones would be involved in an unavoidable court battle to be appointed to this role. If the settlor’s family cannot decide amongst themselves, the court will name its own personal representative (or curator). Obviously, this is not what any reasonable person would wish for their family after they pass

Requirements of a Last Will

Florida laws are strict when it comes to the formality of estate planning documents. Foremost, a Last Will is required to be in writing. In addition, a Last Will must be signed by the settlor at the end of the document.

The settlor must sign the document in the presence of at least two (2) witnesses who are not related to the settlor, and these two witnesses must sign in each other’s presence and in the presence of the settlor. A notary is not required, so long as the Will is properly signed and witnessed. However, it is highly recommended that Florida Wills be notarized.

While a Last Will may be handwritten, rather than typed, it must meet the signature and witness requirements above. There are other specific requirements required to be included for a Last Will to be deemed valid.

Because of the strict compliance requirements in Florida, anyone wanting to put together a proper estate plan should hire an experienced estate planning attorney to assist them with the drafting and execution of their Last Will.

A Last Will must go through probate

It should be noted that having only a Last Will, as opposed to a Living Trust, will require the settlor’s estate to pass through the Florida courts in a process called probate before a personal representative is confirmed or appointed and any distributions are made to any beneficiary. Put simply, probate is the court supervised process of distributing the estate of a deceased person.

The probate process in Florida can be lengthy and costly depending on the size of the settlor’s estate and the validity of the settlor’s estate planning documents. In addition, when an estate passes through probate, all of the settlor’s last wishes and assets will become public information, notifying creditors of the settlor’s death and delaying the distribution of assets to beneficiaries.

Passing away without a Last Will

A Last Will is not required in Florida. If someone passes away without a Last Will, or a written Will is deemed invalid by the probate court, Florida law (called the laws of intestacy) will determine how a decedent’s estate will be distributed after their death. This can be a problem for the decedent’s intended beneficiaries, because Florida’s law of intestacy may not coincide with the decedent’s ultimate last wishes.

This is why it is important for every Florida adult to have, at minimum, a properly drafted Last Will in place before their death.

Passing away without a last will