Wills, Last Will And Testament

Lawyers Helping Brevard County Residents in Estate Planning Matters

If you die without a valid will in Florida, you die "intestate." This means your estate will be distributed by the probate court in the process of "probate." Generally, when somebody dies intestate and either has no children or children only with the surviving spouse, the entire estate goes to the surviving spouse. When somebody has children with someone other than the surviving spouse, the intestate share of a surviving spouse will be divided in half, and half of the estate will be distributed in accord with the code. Not everyone wants this situation. Moreover, probate can be a burdensome and lengthy process for your heirs. Therefore, many people in Brevard County dispose of their property through a valid will that meets the formalities required by the Florida Probate Code. At Cantwell & Goldman, our skilled estate planning attorneys can help you prepare a valid last will and testament.

Drafting a Last Will and Testament

A person who executes a valid will is called a "testator." Anybody who is of sound mind and 18 or older (or is emancipated as a minor) can make a will. Although it may be tempting to prepare the will yourself, you should be aware that a do-it-yourself will may contain a loophole or fail to meet the requisite legal criteria for enforcement, and it is therefore more likely to challenged after your death. Florida does not recognize holographic wills, which are those handwritten by the testator without witnesses, or non-cupative wills, which are those that are made verbally in the presence of witnesses.

Wills in Florida must be in writing and include the testator's signature at the end of the document. Two competent witnesses must also sign the will in the presence of the testator and each other. Although a beneficiary of a will can be a witness, it may be better for individuals who have no interest in the will to be witnesses so that nobody will claim later that one of the witnesses used undue influence to become a beneficiary. If a testator suffers from physical incapacity, somebody else can sign the will on behalf of the testator, but that person must subscribe the testator's name at the end of the will in the testator's presence and at his or her direction. Two witnesses other than the person subscribing the testator's name are still required.

In some states, an affidavit is required. However, a will in Florida can be "self-proven," although there are some advantages to having an affidavit of authenticity signed by the testator and two witnesses in front of a notary.

What if your will was executed somewhere other than Florida? Except for holographic and non-cupative wills, as described above, wills executed in another jurisdiction according to the law of that state will be recognized as valid here. You can make a minor change or clarify an aspect of your will through an amendment called a "codicil." Under state law, a codicil made in Florida has to meet the same formalities as the will.

Ask a Cocoa Attorney Knowledgeable in Wills and Trusts

These days, many people try to write their wills themselves. It is only after they have passed away that the document is contested. A single misstep can result in your wishes not being enforced. If you want to create a valid estate planning document in the Cocoa area, the wills and trusts lawyers of Cantwell & Goldman may be able to help. Contact us at 866-583-9129 or via our online form.