Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. Florida wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with the testator (or the person making the will), to create valid Florida wills and to assign a person (called the executor in most states) to administer a Florida last will and testament after the death of the testator.
Basic Requirements for a Florida Last Will and Testament:
Age: Testator must be at least 18 years old.
Capacity: Testator must be of sound mind (capable of reasoning and making decisions) at the time will is signed.
Signature: A Florida last will and testament must be signed by the testator or signed by someone under testator's direction and in her/his presence is required to be valid
Witnesses: Testator must sign a Florida last will and testament in the presence of at least two competent witnesses. The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. A will is not invalid because the will is witnessed by a person who receives a devise under the will or is appointed a personal representative.
Writing: A Florida last will and testament must be written.
Distribution of Property Through Wills:
A will is a legal document that directs how your assets will be given away after your death. It allows you to give away some or all of what you own, including your real estate, cars, business holdings, money and personal property. Under Florida law, your property may be given to anyone you choose, with certain exceptions, after your estate debts are paid.
Other Purposes of Wills:
With our Florida wills form, you can choose who will be the personal representative for your estate so long as that person qualifies under Florida law. If no personal representative is nominated in the will, the court will appoint one.
A will can set up a trust for long-term management of assets and the protection and security of family members.
Using our Florida wills form, you can select the guardian for your minor children, although there are some restrictions.
You may make gifts, effective after your death, to charity.
You decide who bears the tax burden, rather than the law making that decision.
Notable exceptions to ability to distribute property:
Except in very specific circumstances, a homestead (the residence and adjoining lands) cannot be devised by will if it is: 1) up to acre in size within an incorporated town or city up to 160 acres in size outside those limits; AND, 2) the testator is survived by a spouse or minor child.
Any property owned jointly with another person with right of survivorship cannot be devised by will.
A person may not disinherit his or her spouse without a properly executed marital agreement. Florida law gives a surviving spouse a choice to take either his or her share under the will or a portion of the decedent's property determined under Florida's "elective share" statute.
Community property: Although Florida is not a community property state, decedents domiciled in Florida may have an interest in community property acquired in another jurisdiction.
Providing for Pets
Florida law provides that a trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal. The provisions of the statute apply to trusts created after January 1, 2003. LegalZoom's Florida wills form gives you the choice of providing for your pets in this manner.
Changing and Revoking
Changing a Will
A Florida will and testament may be changed as often as the testator desires as long as he or she is sane and not under undue influence, duress, or fraud by drawing a new will or by a codicil. A codicil is an addition or amendment executed with the same formalities of a will. It differs from a will because a will usually revokes all prior testamentary instruments while a codicil recognizes the existence of a prior will or codicil and changes it.
A Florida will and testament cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate all or part of it.
Revoking a Will
A Florida will and testament can be revoked by the testator during his lifetime if he has the proper mental abilities at the time of revocation. No witnesses to the revocation are necessary unless the revocation is written.
Probate and Estate Taxes
Before a Florida last will is effective to dispose of property, it must be proved in the probate court. If a Florida last will is self-proving and otherwise valid, it may be admitted to probate without further proof. For your Florida last will to be self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgement and affidavits by certificate attached to or following the will.
Florida's estate tax is based on the federal credit for state death taxes. If the estate's gross value meets or exceeds minimum federal estate tax filing requirements, the personal representative must do the following within nine (9) months of the date of death:
- File federal Form 706 [United States Estate (and Generation-Skipping Transfer) Tax Return] with the Internal Revenue Service (IRS) and pay federal estate tax due;
- File a signed copy of federal Form 706 with the Florida Department of Revenue and pay Florida estate tax due; and
- File Florida Form F-706 (Florida Estate Tax Return) with payment of Florida estate tax due.
It is extremely important to make a Florida will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict Florida state laws.
The following is a very basic summary of Florida's intestacy laws, subject to some exceptions.
Intestate Descent and Distribution:
Surviving Spouse and No Lineal (from parent to child) Descendants: The spouse takes all property.
Surviving Spouse and Lineal Descendants:
1) If the lineal descendants are lineal descendants of the surviving spouse: The surviving spouse receives the first $60,000 in the estate plus the rest of the estate and the lineal descendant's share the remaining .
2) If one or more of the lineal descendants is NOT also the lineal descendant of the surviving spouse: the surviving spouse receives of the estate and the lineal descendants split the remaining .
No Surviving Souse, but one or more lineal descendants: the lineal descendants share the estate which is divided at the children's level with a deceased child's share going to the descendant's of that deceased child.
No Surviving Spouse and No Lineal Descendants: The estate goes to the decedent's living parents, and if none, then to decedent's brothers and sisters and descendants of any deceased brothers or sisters.
If you make a Florida will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.