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What is a Last Will and Testament?

A Last Will and Testament is often referred to as a “Will”. The law of Florida that defines the rules for a valid Will.

  1. Each state has its own laws on how to create a valid Will. Florida law is Florida Statute 733.501 to732.504.
  2. Florida Statute states that to be considered a valid Will under Florida law the Will must be typewritten and it must be signed at the end by the maker (Testator) in the presence of two subscribing witnesses. There is no requirement the signatures on the Will are acknowledged by a notary public.
  3. A “holographic” Will is one that is handwritten by the Testator without any witnesses. A handwritten Will is not recognized as valid in Florida.
  4. A “nuncupative” Will is one that is made verbally in the presence of witnesses.

Such a Will is made by terminally ill individuals when a written Will is not possible. Some jurisdictions recognize nuncupative Wills in some situations, Florida does not. The person who creates a Will is referred to as a “testator” (male) or “testatrix” ( Female). For purposes of this discussion, a testator and testatrix will be referred to as a “maker”.

  • A Will has no effect on any assets owned by the maker during life.
  • A Will can outline who inherits assets owned by the maker titled in his or her name alone.

A Will allows the maker to designate who is to serve as the manager of the maker’s assets when he or she dies and distributes those assets according to the terms in the Will and also pays debts of the maker out of the assets owned by the maker. This is referred to as the “personal representative” of the estate.

A Will also allows the maker to identify who is legally authorized to serve as guardian of a minor child upon the maker’s death. A Will can, but is not required, to contain clauses to create a trust or trusts to manage distribution of assets after the maker dies.

Those trusts are referred to as “testamentary trusts”. Testamentary trusts are used when the maker wants a judge to validate a testamentary trust as being valid or to manage assets of a minor or incapacitated beneficiary who is the receive assets of the maker’s estate. A trust can also be created outside of the Will. This is referred to as a stand-alone trust. (See Revocable Living Trusts or Trusts section of this website for further information regarding trusts and its purposes and use.)

A Will is deemed “legally valid” in a court proceeding referred to as Probate. Probate is the process of managing and distributing the assets and paying the debts of a person who has died. A Will is important when a maker believes it is best to have the courts oversee management and distribution of the maker’s estate. This is important when the maker believes there will be arguments over who is to inherit assets of the estate.

A Will has no force and effect as to distribution of any assets until the maker dies.

 

Seven Benefits of having a Will

 

  1. Allows the maker to define how property in the maker’s name alone is to be distributed
  2. Allows the Maker to define certain assets to be given to specific individuals or even charities. (Specific Devise)
  3. A Will can have provisions where maker/parent can name a guardian for minor children or other dependents, such as a handicapped adult child.
  4. Permits the maker to name the personal representative (Manager of the estate affairs) who distributes the assets of the maker and is authorized by the probate court to deal with creditors of the maker.
  5. A testamentary trust can be added to a Will for the purposes of managing distributions of assets to a minor child or disabled child of the maker.
  6. A testamentary trust can afford protection against a beneficiary’s creditors.
  7. Reduces the burden on the family. At the maker’s death, the family will most likely have to handle the maker’s personal affairs. Without a will, this job can become more difficult.

 

Gregory G. Glenn, Esq. is a Certified Elder Law Attorney by the National Elder Law Foundation. He has practiced elder law since 1995. Prior to law school Mr. Glenn worked as a management consultant at the Big Eight accounting firm of Coopers & Lybrand, CPA’s and also at Dunn & Roth, CPA’s as a staff accountant. He has his law degree from MSU and completed his legal studies at the University of Miami School of law. His focus in elder law is on estate planning for the over 65, disability planning, probate, and Medicaid eligibility planning. He has offices in Boynton Beach, North Palm Beach, and Ft. Lauderdale, Florida.