Florida Wills, Trust, and Probate

Understandably, planning for your death or incapacity can be a difficult and emotional process, but putting together a well-drawn plan is necessary to protect you, your loved ones, and your assets. This estate plan can include a variety of well-drafted documents and instructions, but the typical ones are a will, trust, durable power of attorney, healthcare surrogate designation, and a living will and/or advanced care directive. No matter what your age, the size of your assets, or family responsibilities, it is important to create and update these documents during major life changing events (i.e., marriage, divorce, birth of children, special needs, retirement) and other possibilities. You should discuss your estate plan with a Florida wills attorney. An inadequately drafted will or other estate planning documents are not a legacy you want to leave.

Florida Will

If your will is not worded correctly according to Florida law, the will may NOT be considered valid (acceptable) and your assets (your property and money) may not be distributed in exactly the way you want. To properly draw up a valid will in Florida, you will need:

  1. Witnesses: At least two adult witnesses must see you physically sign the will or you must point out and acknowledge your signature to the witnesses.
    • witnesses CAN be beneficiaries under the will
  2. Notarization: Some states require a written will to be notarized. Notarization is not necessary in Florida. However, if your will is notarized it will be "self-proving" and will be automatically admitted to probate.

If your will is not self-proving, the original witnesses may need to be found before the court (in the county where the deceased person lived) will accept your will for probate. This can be difficult, years may pass, and people move away or may be deceased. You should look to a Florida will attorney to help you meet the requirements of Florida will law, giving you peace of mind that it has been done correctly.

Changing a Will in Florida

You have two choices in Florida if you want to change your will:

  1. Make an entirely new will and revoke the prior will; or,
  2. Change your will by amendment or codicil

As far as the first, you may revoke your will by complete destruction of the old one and creation of a new one. With the second, a codicil – a separate piece of paper – is basically an addition to the will and is usually attached to the will itself. Whatever legal document you choose, it must meet the Florida law that applies to a new will. Witnesses, notarization, and proper wording must be used to be sure your wishes are carried out. It is important to discuss any changes to your will with a Florida will attorney.

Florida Trust

A Florida trust is another way to distribute assets after your death. What a Florida trust offers is flexibility in disposing your assets and confidentiality, as well as avoiding probate and saving on taxes. There are a variety of trust vehicles in Florida such as charitable trusts, educational trusts, life insurance trusts, living trusts (sometimes known as revocable or inter vivos trusts), special needs trust, and irrevocable trusts.

A trust is a complicated document, but a Florida estate planning attorney can help set up a trust that will be personalized for your situation.

Florida Probate

When a Florida resident dies, his or her property may pass through probate by their will. If any part of the estate is not designated to go to any particular person, that part will be distributed according to "intestate succession" which means the Florida law determines who gets what according to their relationship with the deceased.

In Florida, when property of a decedent passes by intestate succession or the will is unclear and there is doubt about: (a) who is entitled to receive any part of the property, or (b) the shares and amounts that any person is entitled to receive, any interested person may petition the court to determine beneficiaries (those who receive the property) or their shares.

Florida does have simpler procedures other than the formal probate procedures. One is through Summary Administration which applies if the value of the estate is less than $75,000. Another alternative is Disposition without Administration.

People that may hold interests by intestate succession in Florida may be (non-exclusive):

  1. Spouses
  2. Descendants – children, grandchildren
  3. Parents
  4. Brothers and Sisters
  5. Half Blood
  6. After-born heirs
  7. Adopted Persons, persons born out of wedlock

Some of your assets may not go through probate, these are:

  • non-probate assets – the will or trust designates a clear recipient and passed directly to that person;
  • contract assets – assets that are payable to a specific beneficiary, and include IRAs, life insurance policies, and living trusts; and
  • jointly held property - owned by the decedent and other parties and upon death the ownership of such property (i.e., cars, shared homes, bank accounts) is automatically transferred.

Even if a will was created there is still potential for persons to challenge the validity of the will. It is important to discuss any probate concerns with a Florida attorney who is experienced in probate law.

Florida Statutes

Florida Statutes, Title 42 – Estates and Trusts

  1. Probate Code: Wills
    Florida Statutes, Tit. 42, Chp. 732, §§ 501 – 518.
  2. Probate Code: Intestate Succession
    Florida Statutes, Tit. 42, Chp. 732, §§ 101- 111.
  3. Probate Code: General Provisions
    Florida Statutes, Tit. 42, Chp. 731, §§ .005 – 401.
  4. Probate Code: Administration of Estates
    Florida Statues, Tit. 42, Chp. 733, § 105.
  5. Florida Trust Code
    Florida Statue, Tit. 42, Chp. 736, §§ 0101 - 1303.
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