Wills, Trusts & Estate Planning FAQs

A will is a legal document that provides specific directions regarding who will receive a person’s property after death. The will names a personal representative, or executor, to be in charge of carrying out the instructions set forth in the will. A will may also name a guardian who will care for the decedent’s dependents and any property of the dependents. A trustee may also be identified in a will to manage property held in trust. The laws of the State set forth the formal requirements necessary to create a valid will.

The person making a will is called the Testator.

The Testator must be of sound mind
The Testator must be 18 or more years of age or an emancipated minor.

Every will must be in writing.
The testator must sign the will at the end; or
The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

Two attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

An affidavit is not required for a Florida will to be valid. However, it is highly recommended that the will be “self proven”. This is accomplished by an affidavit attesting to the Will’s authenticity signed by the Testator and the two witnesses before a notary. This will simplify the probate process and reduce probate expenses.

It depends. Many people think that if they have a Will their family can avoid Probate. This may, or may not, be the case. Each situation is unique and must be reviewed to determine whether a Probate will be necessary.

A Will is a simply an expression of what a person desires to happen with assets upon death. The Will itself is not self-executing. Court intervention may be required if the assets are not titled in a manner that automatically transfers upon death.

For example, if a checking account is titled jointly with right of survivorship then it will pass upon death to the joint owner. However, if the account is solely in the name of the decedent, and there is no beneficiary named on the account, then a Probate will likely be required to transfer the asset to the appropriate beneficiary.

If a person dies without a Will, the Court will determine who your beneficiaries are according to Florida law. The Court will be required to follow the Florida Statutes to identify your beneficiaries. Unfortunately, the Florida Statutes do not always choose the beneficiaries that you would have chosen if you had prepared a Will.