5 Things to Consider When Creating a Will

Category: Trusts | Wills

5 Things to Consider When Creating a Will

When most people think about planning for the future, the first thing to come to mind is creating a will. While there are a number of other estate planning documents available, each important in its own way, a will can do a variety of things.

With a will, you can:

  • Leave your property to anyone you would like instead of the law deciding for you
  • Designate a personal representative of your choosing. A personal representative is the executor of your will and will manage your estate upon your death.
  • Create a trust where your entire estate or a portion of your estate will be kept intact with that income being given to family members or others.
  • Sell property and other assets without court proceedings if your will allows it.
  • Make gifts to charity at your death or after your death.
  • Decide who will bear your tax burden instead of the law deciding for you.
  • Name a guardian for your minor children.

With so many options and choices available to you, it’s important to make sure you have covered all your bases to ensure that your will is valid in the event of your death. Keeping that in mind, here are 5 things to consider when creating a will.

1. Marriage doesn’t cancel a will in Florida. Let’s say you have created your will, but then you get married some time after your will has been executed. Getting married won’t cancel that will. You will have to do that on your own. But your new spouse may receive the same portion of your estate that he or she would have received – at least half – if you had died without a will. If, however, you want your current spouse to receive more or less of your estate after your death, you will have to make changes to your will.

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2. A will from another state should be reviewed by a Florida attorney. If you move to Florida and already have a will from another state, you should have a Florida attorney review your will to make sure that it is properly executed under Florida law. Since every state is different, you want to ensure your will is valid when needed. On top of making sure the contents are correct, you should also see that the witnesses to your will are available to prove your will in Florida and that your personal representative is capable of serving here as well.

3. Your will has to be proved valid in probate court. There are two options when it comes to proving your will. You can make your will self-proving, or one of your witnesses will have to give their oath before the court. This is why, if your witnesses are located outside of Florida, it’s important that at least one of them will be able to give their oath to the court.

If you have a self-proving will, witnesses won’t need to be located or required to give their oath after you die. How do you make your will self-proving?

  • You have to acknowledge the will before an officer who is authorized to administer oaths.
  • Your witnesses have to make affidavits before the officer.
  • The officer has to evidence the affidavits and they require acknowledgement by a certificate attached to or following the will under Florida law.

You will still need to execute your will the regular way, but if you want to make it self-proving, you need to complete these steps as well.

4. You do not have to leave each of your children an inheritance. You have no obligation to leave your children, your spouse, or anyone any part of your estate. Ultimately, the decision of who should get your property and how much they should get is up to you. If you plan to leave someone out of your will, you can either simply omit them or include that no provision is being made for that person.

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5. Execute your will in the presence of an experienced Florida estate planning attorney. The laws in Florida regarding the execution of wills are strict, so if your will isn’t executed by a qualified attorney, it may not be valid. Regardless of how perfect you might think your will is, a knowledgeable attorney who is well versed in our laws will be able to verify if your will is properly in order. A will needs to be signed in a specific way and an attorney will be able to guide you through the process, ensuring you have a valid, executed will for whenever it’s needed.


About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.