A will is a document that directs the disposition of the person’s property on or after his or her death. A will must be in writing and signed by the person making the will at the end or the person making the will may direct that his or her name be signed at the end by some other person in the presence of the person intending to make a will. The person signing the will or the person signing the will for another must also sign the will in the presence of at least two witnesses. These witnesses must sign the will in the presence of the person intending to make a will and in the presence of each other.
No particular form of words is necessary for a will to be valid if it is signed with the required formalities which are described in the previous paragraph.
A codicil is an amendment to a will. A codicil must also be signed with the same formalities as a will.
A holographic will is a handwritten will that is not properly witnessed. A nuncupative will is an oral will declared or dictated by a person in his or her last sickness before a sufficient number of witnesses, and afterwards reduced to writing. The Florida statutes do not authorize a judge to admit a holographic or a nuncupative will to probate. However, a will in a person’s handwriting that has been signed and witnessed in the same manner for a will is not considered a holographic will and may be admitted to probate.
The purpose of probate is to collect a deceased person’s assets; pay his or her claims, taxes, and administrative expenses from those assets; and distribute the remainder of the assets after administrative expenses to the beneficiaries entitled to receive them.
Any will, other than a holographic or nuncupative will, signed by a nonresident of Florida, is valid as a will in Florida if it is valid under the laws of the state or country where the will was signed. The problem in admitting such a will to probate is that unless the will is self-proved, a witness to the will in the state where it was signed must make an oath that the person who made the will was of sound mind and no undue influence when the will was signed. The probate of this will may be delayed while a commissioner (notary public) in the state where the person making the will resided is appointed by a Florida circuit judge.
A valid will from another state or from Florida may be made self-proving when it is signed or at any subsequent date through the acknowledgment of the will by the person signing the will and the oaths of the witnesses which are made before an officer authorized to administer oaths such as a notary public. A self-proved will may be admitted to probate without the subsequent testimony of a witness to the will.
A will or a codicil, or any part of either, may be revoked by a subsequent will, codicil or other document declaring the revocation of the previous document, if the same formalities required for the execution of a will are observed in the execution of the new will, codicil or other writing. The revocation of a subsequent will that revoked a previous will does not revive the previous will even though the previous will is in existence at the date of the revocation of the subsequent will.
A will or a codicil, or any part of either, may also be revoked by a subsequent inconsistent will or codicil even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils. However, the revocation extends only so far as the inconsistency exists.
A will or codicil may also be revoked by the person making the will, or some other person in the presence of the person who made the will and at his or her direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intention, and for the purpose of revocation. There cannot be a partial revocation of a will by these actions. Thus, a person cannot vary the terms of his or her will, after its signing, by alterations or changes of its face that gives new meaning to the part altered, unless the alterations or changes are signed and attested to in the manner provided by law for the making of a will.
It is important to remember that a new will should be signed after a marriage or the birth or adoption of a child. Otherwise, the Florida statutes state that the new spouse or child will receive the share of the deceased’s probate estate that he or she would have received if the deceased died without a will. This means that if a person who has surviving lineal descendents (children and grandchildren) from a previous marriage remarries and does not sign a new will or specifically provide for the new spouse in a will signed before marriage, the new spouse will receive one-half of the deceased spouse’s probate estate regardless of what was intended in a previous will that was signed before 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.
Until October 1, 2001, the surviving spouse of a person who signed a new will after marriage which omitted the new spouse or gave the spouse less than 30 percent of the probate estate was only entitled to elect a share of the deceased spouse’s probate estate. This “elective share” was equal to 30 percent of the value of all property of the deceased spouse wherever located that was subject to probate administration, except for real property not located in Florida.
Florida’s new elective estate statute which became effective October 1, 2001, states that a spouse of a person who dies a permanent resident of Florida will now have the right to elect to receive 30 percent of the value of not only the deceased spouse’s probate estate, but also 30 percent of the value of the decedent’s other assets which are intended to pass outside of probate. This means that the surviving spouse will have the right to elect to receive 30 percent of the fair market value of the first spouse to die’s real property owned in another state and any other assets including accounts or securities which are to be paid on death or in co-ownership with another person than the spouse or intended to pass from a revocable trust to another person. This right of a surviving spouse to an elective share may be waived before or after marriage by signing a written agreement or waiver in the presence of two attesting witnesses.
The provisions of a trust signed after October 1, 1995, that dispose the trust’s property on or after the death of the person making the trust are invalid unless the trust instrument is signed by the person establishing the trust with the same formalities required for the signing of a will. The provisions of a trust signed by a person who is not a resident of Florida that dispose the trust’s property on or after the death of the person making the trust are not invalid if the trust instrument was correctly signed under the laws of the state or country where the person signing the trust was at the time it was signed.
It is important to understand that once a trust is created, it cannot be revoked unless a right of revocation is reserved in the trust instrument. Unless the trust agreement provides otherwise, the right to revoke the trust instrument is personal to the person creating the trust. A trust may state that the power to revoke the trust is personal and may not be exercised by a guardian, attorney-in-fact, or others.
This page is excerpted from the Florida Senior Legal Guide..