Useful Tips from Estate Planning Attorney

A Jurado & Farshchian Estate Planning Attorney will work closely with you to devise an effective and legally permissible Will, which is critical to laying out what you want done with your assets when you are no longer around to say so. Given the sensitive nature of Wills, they must abide by very strict requirements in the State of Florida – otherwise, they will be considered invalid in probate court, which is responsible for “proving a Will” and administering it accordingly.

An Estate Planning Attorney Can Help You Avoid Intestate Estate

Creating an effective and clearly written Will is a key way to avoiding what is known as an intestate estate. If there is no Will expressing what the decedent had in mind for their assets upon death, or the Will that exists is found invalid by the court, the estate is described as intestate. This means that Florida law will determine how the assets will be distributed. The probate court will prioritize the payment of claims, debts, taxes, and expenses, then distribute what is left (the residue) to the next of kin by order of succession: so, if you leave behind a spouse but no children, the spouse receives what is left. If you have no surviving spouse but have children, the children receive the residue. If there is both a spouse and children, all of whom are your natural children with your spouse, the spouse is entitled to the first $60,000 plus half of the remaining estate, while the children collectively receive the remaining half. Things get more complicated if, for example, you have a child from a previous marriage.

Suffice it to say, unless you have no concern about the fate of your estate when you die, you shouldn’t leave it in the hands of a probate court and its standard intestate procedures. If you at least have a Will, your estate will be testate, meaning it will be filed with the probate court and, if found valid, will be executed with the court’s supervision.

Minimum Requirements Every Estate Planning Attorney Knows

Unlike some other states, Florida does not permit oral or handwritten Wills: only printed and typed Wills are legally valid. The person making the Will – called the testator – must be at least eighteen years of age (barring unique instances of early legal emancipation). The testator must also be of sound and competent mind, meaning that they fully understand what they are signing, what they own, and who they are bequeathing it to. If the testator is found to have been mentally or psychologically impaired at the time their Will was signed, said Will is likely to be declared invalid.

Will Language and Provisions

Florida does not specify nor require any particular terminology or style for a Will to be valid. The language can be as simple as the testator desires, although it is of course better to be as clear and detailed as necessary to eliminate any misinterpretation or ambiguity. This is especially true of large or complex estates where there are many assets and/or heirs to keep in mind. An experienced and knowledgeable Estate Planning Attorney will know the best way to express your wishes without leaving any room for potential claims or errors that will interfere with your plan.

Executing a Will with the Help of an Estate Planning Attorney

The testator must sign the document on the last page in the presence of at least two witnesses who are present at the same time and place as the testator, and who will each sign to affirm this. Like the testator, the witnesses must be legal adults and mentally competent. Though not required, some Wills are initialed on each page by the testator and witnesses to signify that the entire document was read and understood prior to the final signature.

Notarization

While it is not required, it is advisable to “self prove” a Will by having it signed in the presence of a notary public, who will take a sworn statement from the witnesses affirming that, under penalty of perjury, they saw the testator sign the Will. Notarization means the Will can be admitted in probate court after the testator’s death without the witnesses needing to come forward to testify that they saw it signed. A Self Proving Affidavit signed by the testator serves the same purpose and can be prepared at the time of signing or afterward, stating the testator signed the Will in the presence of the two witnesses who signed.

Securing a Will

It is imperative that the testator keep the original executed Will in a safe and secure place, such as a bank’s safety deposit box, so that it can be presented to the probate court following their death. Copies are generally not admissible in probate proceedings except in highly unusual cases. Nevertheless, it is good to have at least one copy stored away in the event the original is somehow lost or damaged.