A will is a document that dictates how a person’s property is dispersed upon his or her death. A will is a formal document that must be signed by the creator. If the creator is unable to sign the will, he or she may direct someone else to sign on his or her behalf, as long as the creator is present at the time of the signing. Regardless of who is signing the will, there must also be at least two witnesses present. The witnesses must also sign, while in the presence of the creator of the will, as well as the other witness.
No particular form of words is required for the will to be valid, as long as it is signed with the required formalities described in the paragraph above.
A codicil is an amendment to a will and must be signed following the same formal rules as the original document.
A holographic will is a handwritten document that was not properly witnessed. A nuncupative will is one that is declared orally as part of one’s last wishes. The declaration of a nuncupative will must have taken place in font of a sufficient number of witnesses and later must be put into writing. According to existing Florida law, a judge may not admit holographic or nuncupative wills to probate. However, if a will is handwritten but was signed following the proper procedure, it is not considered holographic and may be admitted to probate.
The purpose of probate is to collect a deceased person’s assets, pay their claims, taxes, and administrative expenses from those assets, and distribute the remaining assets to the beneficiaries described in the will.
Any will, other than holographic and nuncupative wills, that is valid in the state or country in which it was signed is also recognized as valid in the state of Florida. While Florida recognizes that these wills are valid, there are some stipulations that occur when admitting the will to probate. Unless the will is self-proved, a witness to the will from the state in which it was signed must swear under oath that the creator of the will was of sound mind and no undue influence when he or she signed it. This means that probate may be delayed until a commissioner (notary public) from the state where the will was signed is appointed by a Florida circuit judge.
A valid will may be made self-proving when it is signed or any time thereafter. To make a will self proving, the signer of the will and the witnesses must acknowledge it under oath in front of an officer who is authorized to administer oaths, such as a notary public. A self-proved will can be admitted to probate without further testimony of a witness to the will.
A will or codicil, or any part of either, may be revoked by a subsequent will, codicil or other document declaring the revocation of the previous document. The new will, codicil, or overwriting document must also follow the same signing procedures as the original will. However, if the second will, codicil, or document is later revoked, it does not reinstate the validity of the original will or codicil.
Furthermore, a will or codicil, or any part of either, may also be revoked by an inconsistency in a subsequent will or codicil. In this case, the revocation only applies as far as the inconsistency exists.
Lastly, a will or codicil may be revoked by the creator of the will, or by someone else in the presence of the creator, and at his or her direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent and purpose of revoking the will. However, there cannot be a partial revocation of a will by these actions. A person cannot make changes that give new meaning to the will without again following the proper signing formalities.
It is also worth noting that a new will should be created after a marriage, or after the birth or adoption of a child. Without a new will, Florida law states that the spouse or child will receive the same share of the estate’s assets that they would if the deceased didn’t have a will. So, if a person is survived by lineal descendants from a previous marriage, the new spouse will receive one half of the deceased spouse’s probate estate. This applies regardless of what is stated in the previous will that was signed prior to the remarriage. If there are no surviving lineal descendants, and no new will is signed after the marriage, the new spouse will receive the entire probate estate.
There are also rules that dictate what happens if a new will is signed after marriage, but the new spouse is omitted from the will, or gave the spouse less than 30% of the probate estate. Before October 1, 2001, the surviving spouse was only entitled to elect a share of the deceased spouse’s probate estate. This “elective share” was equal 30% of the value of all property of the deceased, regardless of location, that was subject to probate administration, except for real property not located in Florida.
However, Florida’s new elective estate statute, which went into effect on October 1, 2001, says that the surviving spouse is entitled to 30% of the deceased’s probate estate, but he or she is also entitled to 30% of the value of the decedent’s other assets. This means that, in addition to the 30% entitlement of probate assets, the surviving spouse is given access to 30% of the fair market value of the deceased spouses real property owned in another state, as well as any other assets including accounts or securities which are to be paid upon death, or in co-ownership with another person than the spouse, or are intended to pass from a revocable trust to another person. The right given to the surviving spouse to an elective share may be waived before or after marriage by signing a written agreement in the presence of two attesting witnesses.
There is also a provision regarding trusts signed after October 1, 1995 that deals with the disposal of a trust’s property upon the death of the person that created the trust. Any provision in a trust signed after the aforementioned date that dispose of the property in the trust upon the grantor’s death is invalid unless the trust instrument was signed following the same formal rules applied to the signing of a will. If the trust was not signed in Florida, these provisions remain valid as long as the trust was correctly signed under the law of the state or country in which the trust was established.
Once a trust is established, it cannot be revoked unless a right of revocation is reserved in the trust instrument. Unless the trust agreement states otherwise, the revocation right of the trust is given only to the creator of the trust. Furthermore, a trust may specify that the power of revocation is personal and may not be exercised by a guardian, attorney-in-fact, or others.