A will is a legal document that governs the distribution of the testator’s assets upon death, as well as various aspects of administration of the testator’s estate. Any person who is of sound mind and who is either 18 years of age or an emancipated minor may make a will.
A will generally contains a brief description of the testator’s family, and nominates the Personal Representative who will be in charge of the administration of the estate after the testator’s death. It is recommended to name one or two successor Personal Representatives to serve in the event the first nominated Personal Representative is unwilling or unable to administer the estate.
One of the most important and well-known aspects of a will is the instructions regarding distribution of the testator’s assets upon the testator’s death. The testator may make specific gifts of cash or property, (i.e. “I give $1,000 to my daughter, Jenny” or “I give my blue Mercedes to my son, John). The testator may also reference a “separate list” or “separate writing” wherein the testator can set forth a distribution schedule, but only for tangible items of personal property like jewelry or art. The “separate list” is incorporated in the will, even though it remains a separate document and subject to change even after the execution of the will. The “separate list” may not direct payment of cash, real estate or other intangible assets.
After making provision for specific gifts, the will generally contains a “Residuary Clause,” which provides for the distribution of the remainder of the estate, or any assets remaining after the specific gifts are made. The Residuary may be given entirely outright to one person, or may be divided in shares and distributed equally among selected individuals. The residuary may be distributed to children in ages and stages if the will contains a testamentary trust. Some testators elect to distribute their Residuary Estate to charity.
Other important provisions which may be included in a will are instructions for the payment of expenses of administration and/or taxes which may be owed upon the death of the testator; funeral arrangements; appointment of a Personal Representative to administer the estate; and powers which may be granted to the Personal Representative in his or her administration of the estate.
Will Creation
In order to be a valid will under Florida law, a will must conform with the execution requirements set forth in the Florida Probate Code. Pursuant to Section 732.502 of the Florida Probate Code, a will must be in writing and must be signed by the testator at the end of the document. If the testator is unable to sign the document, some other person may subscribe the testator’s name at the end of the document in the testator’s presence and by the testator’s direction.
Further, the testator’s execution of the will must be witnessed by at least two attesting witnesses who also must sign the will in the presence of the testator and in the presence of each other. A will may satisfy the execution requirements of the Florida Probate Code if the witnesses are not present for the testator’s execution of the will, but are present for the testator’s acknowledgement that he or she has previously signed the will or that another person has subscribed the testator’s name to the will at the testator’s direction. Nevertheless, the witnesses must always sign the will in the presence of the testator and in the presence of each other.
Codicils
A Codicil is a separate document that amends or revises the will. The Codicil may replace a provision of the will; add to the will; or delete a provision of the will. Pursuant to Section 732.502(5) of the Florida Probate Code, a codicil must be executed with the same formalities as will.
Will Revocation
Pursuant to Section 732.505(1) of the Florida Probate Code, a will or codicil is 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, but the revocation extends only so far as the inconsistency. A will can also be revoked by act. Pursuant to Section 732.506 of the Florida Probate Code, a will or codicil is revoked by the burning, tearing, cancelling, defacing, obliterating, or destroying the will with the intent to revoke the will.
In practice, a testator who desires to revoke a will should do so in a writing executed with the same formalities required for the execution of wills. The writing should expressly declare the revocation. This clear and explicit method of revocation is authorized by Section 732.505(2) of the Florida Probate Code.
