Last Will and Testament

A last will and testament is a legal tool to handle three important tasks:

1. Nominate guardians for dependent children
2. Instruct how your estate is to be distributed to beneficiaries
3. Appoint someone to handle the transition of your estate

Without a will naming guardians for dependent children, a court in the state of Florida will hold a hearing to determine the children's guardians. The court may end up selecting someone who you would not have chosen. A court will not know what factors you would weigh in consideration.

Without a will, the state of Florida has a method to distribute your estate.

A will provides instructions how to distribute assets owned by the testator (the person who wrote the will) that a) do not already have beneficiaries listed on them, such as life insurance or an IRA, b) assets in a trust or c) assets held in joint tenancy with someone else who is still living.

If your beneficiaries are young, a will can create a testamentary trust to hold assets until the beneficiaries are fiscally mature.

Without a will

Should you pass intestate (without a will), the state of Florida has the following distribution instructions:

732.103 Share of other heirs. The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
1. To the descendants of the decedent.
2. If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.
3. If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
4. If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
   1. To the grandfather and grandmother equally, or to the survivor of them.
   2. If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
   3. If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

5. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
6. If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

A last will and testament does not help assets avoid probate.

One of the purposes of probate is to validate a will and ensure its instructions are followed. Probate is required for estates with over $75,000 in real estate or other property subject to probate.

Creating a will

The terminology used in a last will and testament in Florida is as follows:

Testator - the person creating a will
Personal representative - like an executor, in charge of handling the estate when the testator passes
Beneficiary - heir to the estate
Guardian - person nominated to care for testator's dependent children

Here are some general requirements for a will in Florida:

1. An attorney is not necessary to create a will but an attorney can help ensure the will is valid when examined by a court.
2. The testator must be 18 years old to create a will and of sound mind.
3. The will must be witnessed and notarized.

Wills from other states can be valid in Florida depending on the language, so it is best to have an attorney review your will from another state to ensure its legality.