Last Will and Testament
August 14, 2023
A person who creates a Will is known as a “Testator”. There is a great deal of misunderstanding about what a Will is, and what it is used for. A Will serves two (2) general purposes. The first purpose is to name a Personal Representative. This is the person who will be responsible for managing your estate’s affairs once you are deceased, and should be a person that you trust. The Personal Representative is often also one of the beneficiaries, although this is not a requirement. The second purpose of the Will is to distribute one’s assets to beneficiaries.
Some people assume that a Will automatically transfers their assets on death. But this is a common misconception. In fact, Wills are required to go through probate. Probate is the court process through which a person’s assets are administered upon death. In Florida, the custodian of a Will is required to deposit it with the Clerk of Court within ten (10) days after receiving information that the Testator has died. Fla. Stat. § 732.901. For that reason, it is important that someone (preferably the personal representarive) know where the Will is at all times. Another common misconception is that a copy of the Will is sufficient. In fact, the original Will is required in order to commence the probate process. If the original Will cannot be located, then separate (and somewhat complex) proceedings must take place in order to establish and probate the lost Will. Fla. Stat. § 733.207.
It is also important to know that there are very specific legal requirements in order for a Will to be valid. In Florida, the Will must be “self-proving”. This means that it must conform to the legal requirements of creating a valid Will plus, in addition to signing the Will in the presence of two qualified witnesses, it must contain an affidavit at the end signed by the testator in front of a notary. Fla. Stat. § 732.503. If your Will does not meet all of the legal requirements, then it will not be admitted to probate. If this happens, it will be as if you had died without a Will.
It would be a mistake to assume that you can prepare your own Will using forms that you find on the internet. This could create a false sense of confidence, causing you to believe that you are protected, when in fact, you may not be. It is important to retain a qualified attorney to ensure that your Will meets all of the legal requirements.
