October 16, 2014

What is a Last Will and Testament?

​By Revis, Hervas & Goldberg P.A.

A Last Will and Testament is an instrument which governs the disposition of a decedent’s property after death. A Will should also designate a Personal Representative to administer the estate. Where applicable, the Will should designate a Guardian to care for minor children and a Trustee to manage testamentary trusts.

A Will may be revoked or modified by a Codicil. The Will does not become permanent or effective until after the maker dies and the Will is accepted by the Probate Court in the decedent’s county of residence.

Having a Will does not avoid probate. Generally speaking, probate is the legal process by which a court validates a Will and empowers a Personal Representative to administer the estate. That administration includes collecting the decedent’s assets, notifying creditors and beneficiaries, and making appropriate distributions according to the law and the terms of the Will. The probate process,which is subject to court supervision and approval, might be finished in a matter of months. However, it typically takes longer, especially if there are complicated assets or if there is litigation among potential beneficiaries or creditors.

If a person dies without a Will, which is known as intestacy, then Florida Statutes prescribe how the decedent’s assets will be distributed. Intestate inheritance is based on the decedent’s marital status and the decedent’s next of kin.

There are strict formal requirements under Florida law for qualification as a valid Will, including that it be signed at the end by the person making it and by two attesting witnesses. One of those witnesses will need to visit the probate court to “prove” a Will, unless the instrument is properly self-proved at execution, which involves notarization of the signatures of the maker and both witnesses.

It is not legally necessary for an attorney to be involved in the creation or execution of a Will. However, given the importance of the instrument, the strict standards for execution, and the need to get it right, most people would do well to seek the counsel and drafting assistance of an attorney in making their Will and in properly executing it. Unfortunately, we have seen many instance where a self-drawn Will or some portion of it is invalid because the maker got it wrong.

It is wise to review a Will approximately every three years, as there may be changes in the law, circumstances, family or preferences.

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