A Last Will and Testament remains one of the foundational documents in a comprehensive estate plan. Although most people understand that a Will can determine who receives property after death, the document can accomplish several other important objectives as well. Among other things, your Will can nominate the person you want to administer your probate estate and identify the person you would prefer to care for minor children if a guardian becomes necessary. What many people do not realize is that there is no single type of Will appropriate for every estate plan. The document that works for a young parent with modest assets may be very different from the Will incorporated into an estate plan built around a Revocable Living Trust. Choosing the appropriate Will therefore requires more than downloading a standard document and filling in the blanks. Your family structure, ownership of assets, existing trusts, minor children, business interests, property located in other jurisdictions, and long-term estate planning objectives should all influence the type of Will you create. With that in mind, the Vero Beach attorneys at Kulas Crawford & Smith help you choose the right type of Will for your Florida estate plan.
Why Do You Need a Last Will and Testament?
Your Will primarily controls property that becomes part of your probate estate. Within the document, you can identify beneficiaries and specify how qualifying property should be distributed after your death. You can also nominate the Personal Representative you want to administer your estate. The Personal Representative has significant responsibilities during Florida probate. Among other duties, this fiduciary may need to identify and safeguard estate assets, address valid creditor claims, handle financial and tax matters, and ultimately distribute the remaining estate according to the Will and applicable Florida law.
For parents of minor children, a Will serves another particularly important function because it provides an opportunity to nominate a guardian. Although the court retains authority over guardianship appointments, formally documenting your preference gives the court important guidance concerning whom you want to care for your children if neither parent is available.
Without a valid Will, property that would otherwise have been controlled by the Will is generally distributed according to Florida intestate succession laws. Those statutes determine who inherits based primarily on legally recognized family relationships rather than on what you might have wanted. Consequently, intestacy can create results that bear little resemblance to your actual wishes. An unmarried partner, close friend, charitable organization, or other person you considered family does not automatically inherit merely because that individual was important to you.
The Simple Will
For some Florida residents, a straightforward Will may accomplish most of their immediate testamentary goals. A Simple Will typically identifies beneficiaries, directs the distribution of probate property, nominates a Personal Representative, and, when appropriate, nominates a guardian for minor children. Specific gifts can also be included, such as leaving a particular item of property or sum of money to a family member, friend, or charitable organization. The term “Simple Will” should not be interpreted as meaning that the document is unimportant or that everyone with a modest estate should prepare one without legal assistance. Rather, the term generally describes a Will used when the Testator’s family and financial circumstances do not require more complicated testamentary provisions.
The Pour-Over Will
If a Revocable Living Trust serves as the foundation of your estate plan, a Pour-Over Will may be the most appropriate type of Will. A Revocable Living Trust only controls assets that have been properly transferred into it. Ideally, you will fund the trust during your lifetime by transferring appropriate property into the Trustee’s name or otherwise arranging ownership so that the trust can control the assets as intended. In practice, however, assets can unintentionally remain outside the trust for a variety of reasons. You might purchase property and die before completing the transfer, open a financial account without placing it in the trust, or simply overlook an asset when funding the trust. A Pour-Over Will functions as a backup for this situation.
Instead of allowing qualifying property left outside the trust to pass under Florida intestacy laws, the Pour-Over Will generally directs that the property pass into the existing trust after going through the necessary probate process. Once transferred, the property can be administered and distributed according to the trust agreement.
The Living Will
Despite the similarity in terminology, a Living Will performs an entirely different function from a Last Will and Testament. A Last Will and Testament primarily addresses matters that occur after your death. A Living Will operates during your lifetime and communicates your wishes regarding specified healthcare decisions if you become unable to make or communicate those decisions yourself. Under Florida law, a competent adult can execute a Living Will addressing the providing, withholding, or withdrawal of life-prolonging procedures under specified circumstances involving a terminal condition, end-stage condition, or persistent vegetative state. For example, your Living Will can provide guidance concerning whether you want life-prolonging procedures continued if you reach a medical condition covered by the directive and cannot communicate your own wishes.
Reciprocal Wills for Married Couples
Married couples frequently want estate plans that reflect similar objectives. Each spouse may want the other to inherit most or all property, followed by children or other beneficiaries after the surviving spouse dies. This can be accomplished through separate Wills containing similar provisions, sometimes referred to as reciprocal or mirror Wills. Despite containing comparable terms, each spouse executes a separate legal document, a distinction that provides important flexibility. If circumstances change, each spouse can generally update their own estate plan, assuming the legal requirements for doing so are satisfied and no separate binding agreement limits that ability. This flexibility can become extremely important after the first spouse dies.
Joint Wills
A Joint Will differs from reciprocal Wills because both spouses use a single testamentary document. Although Joint Wills have historically been used by married couples who want to establish a unified estate plan, they are far less common in modern planning. One concern is the potential restriction a Joint Will can place on the surviving spouse. If the arrangement becomes binding after the first spouse dies, the survivor may have limited ability to revise the distribution scheme despite significant changes in family or financial circumstances. Because modern estate planning offers more flexible tools, including separate Wills and various types of trusts, couples considering a Joint Will should carefully evaluate whether it provides any meaningful advantage over alternatives that preserve greater flexibility.
Electronic Wills in Florida
Florida estate planning has changed significantly with the statutory recognition of electronic Wills. An electronic Will is not simply a document you type on a computer and save as a PDF. Florida law establishes specific requirements governing electronic execution, signatures, witnessing, notarization procedures, and, when applicable, the use of audio-video communication technology. When the statutory requirements are satisfied, an electronic signature can fulfill a signature requirement, and Florida law permits certain witnessing requirements to be satisfied remotely through qualifying audio-video technology under prescribed conditions. Electronic Wills can offer convenience, particularly when traditional in-person execution creates practical difficulties. At the same time, electronic execution introduces additional technical and procedural requirements that must be carefully followed.
Conditional Wills
A Conditional Will is intended to take effect only when a specified event or circumstance occurs. For example, someone preparing for an unusually dangerous trip might create language indicating that the Will applies if the person does not survive the journey. Although that may appear straightforward, conditioning the validity of an entire Will on an event can create unnecessary uncertainty. Questions may arise about precisely what the Testator intended. Was the reference to the trip merely an explanation of why the person decided to make a Will at that time, or was survival of the trip intended to make the Will ineffective afterward? If the condition is ambiguous, beneficiaries may disagree about whether the Will applies at all. In many situations, a traditional Will containing carefully drafted contingent provisions can accomplish the underlying objective more reliably. Instead of making the entire Will dependent on a single event, your attorney can draft provisions explaining what happens if a particular beneficiary dies before you, if spouses die close in time, or if another anticipated circumstance occurs.
International Wills and Estate Planning for Foreign Property
Florida residents increasingly own assets outside the United States. You might inherit family property overseas, own a vacation home in another country, maintain foreign investment accounts, or have business interests in multiple jurisdictions. International ownership can complicate estate planning because another country may apply inheritance, probate, tax, marital property, or forced-heirship laws that differ significantly from Florida law. An International Will may be relevant in some cross-border estate plans, but merely labeling a document an “International Will” does not guarantee that every foreign jurisdiction will accept it or administer property according to your expectations. In some situations, separate estate planning documents prepared with assistance from attorneys in the jurisdictions where property is located may be more appropriate. Coordination becomes critical because multiple Wills that are drafted independently can create serious problems if one inadvertently revokes another.
What About Holographic and Oral Wills in Florida?
A holographic Will is generally understood as a Will written in the Testator’s own handwriting that does not satisfy ordinary witnessing requirements. Florida does not recognize a holographic Will merely because it is handwritten. A handwritten Will can be valid if it is executed with the formalities required by Florida law, but handwriting by itself does not substitute for those formalities. Florida does not recognize an informal oral, or nuncupative, Wills under any circumstances.
Can We Help You Choose the Right Type of Will for Your Florida Estate Plan?
To learn more, please join us for an upcoming FREE seminar. If you would like help choosing the right Will for your Florida estate plan, please contact an experienced Vero Beach estate planning attorney at Kulas Crawford & Smith by calling (772) 398-0720 to schedule a consultation.
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