In Florida, a will is a fundamental component of virtually any estate plan. Your will can – and should – serve a number of important purposes, and it should be carefully drafted with your personal goals and the specific requirements of Florida’s probate laws in mind.
While the substance of everyone’s will should be unique, there are a number of key provisions that are essential to building the foundation of a comprehensive (and legally-enforceable) estate plan. Here is a brief overview of ten of the key provisions that Florida residents generally need to include in their wills:
1. Exordium and Revocation
The “exordium” clause is your declaration that the document you are preparing and signing is intended to be your last will and testament . Even if you have not previously prepared a will, it is also a good idea to state that “any” prior wills or codicils (amendments to a will) are being revoked. This will help avoid questions about whether there are any other estate planning documents that need to be considered during the probate process.
2. Personal Information
When preparing a will, you need to make sure that everyone else knows it is yours. If your will does not identify you as the “testator” (the person who created the will) with sufficient specificity, then your family members may run into problems when attempting to file your will with the probate court. In addition to including your basic identifying information, your will should also state your country of citizenship and your state and county of residence.
3. Appointment of a Personal Representative
When it is time to execute the terms of your estate plan, the individual who will be responsible for filing your will with the probate court and managing the probate process is your “personal representative” (also referred to as your “executor”). When preparing your will, it is important to choose a personal representative who you believe is capable of serving in the role effectively. This can be a friend or family member, or it can be your attorney. In any case, it is important to ensure that your chosen personal representative is comfortable serving in the role.
4. Appointment of a Guardian
If you have minor children (in Florida, the age of majority is 18), then you will likely also want to use your will to appoint a guardian . In the event that you die before your children become adults, your guardian will step into your shoes and take responsibility for providing your children a home and preserving their wellbeing. You can include various stipulations regarding your chosen guardian’s rights and responsibilities, and there are ways to provide financial support for your guardian in your estate plan as well.
5. Identification of Devisees
When you leave property to someone in your will, this gift is referred to as a “devise,” and the recipient is referred to as a “devisee.” Any assets that you do not devise through your will (or through a trust or other estate planning document) will fall to your “heirs,” who are the family members identified in Florida’s intestate succession law . When preparing a will, it is important to clearly identify all devisees so that your personal representative will be able to locate them during probate.
6. Statement of Devises
In your will, you will want to include devises for all assets that are not covered by a trust or other estate planning document (as we have previously discussed , many individuals will find it beneficial to distribute the majority of their estate through a trust rather than through their will). In addition to any specific devises you may want to include in your will (e.g., “I leave $50,000 from my savings account to my sister, Jane Doe.”), it is also generally advisable to include a “residual” devise that covers any assets that are not specifically addressed elsewhere in your estate plan.
7. Survival Provisions
For many spouses, it will be important to include what are commonly known as “survival” provisions in their respective wills. These provisions are designed to provide clarity and avoid unnecessary probate expenses in the event that both spouses die at the same time or within a very narrow time window (e.g., in the case of a fatal accident). Typically, survival provisions will contain specific instructions for how to distribute the spouses’ joint estate consistent with their respective estate planning goals.
8. Alternate (or “Contingent”) Designations
Designating an alternate (or “contingent”) personal representative ensures that your will still controls the appointment of your personal representative in the event that your “primary” designee is unavailable or unable to serve in the role at the time of your death. The same is true with regard to alternate guardians and devisees.
9. Statement or Testamentary Capacity and Intent
There are various ways that heirs, creditors, and other interested parties can challenge the validity of a will – one of which is by alleging that the testator lacked the necessary capacity or intent to create a legally-binding document. Including an adequate statement of testamentary capacity and intent can help prevent these types of allegations from disrupting or delaying the probate process.
10. Attestation and/or Self-Proving Affidavit
Finally, under Florida law , a testator must sign his or her will in front of at least two witnesses in order for the will to be legally enforceable. An attestation clause serves to clarify that the witnesses who signed the will actually witnessed the testator’s signature as required. Another common practice is to include a self-proving affidavit, which allows the testator’s and witnesses’ identities to be confirmed by a notary who acknowledges that the testator signed under his or her own free will.
Do You Have Questions about Preparing Your Will?
This list is by no means exhaustive. And as we mentioned above, the specific terms of your will should be unique to you. If you would like more information, we encourage you to get in touch. To request an appointment with one of our experienced estate planning lawyers, please call us today or inquire online .