While most property can be transferred by a will, some interests cannot because the right of the owner terminates at death, or others have legal rights. Examples include:

• Homestead Property: Generally, the residence cannot be willed if there is a surviving spouse or minor child.
• Joint Ownership: Property owned with "right of survivorship" passes automatically to the joint owner.
• Spousal Rights: You may not disinherit a spouse without a properly executed nuptial agreement. Florida law gives a surviving spouse an "elective share" of the estate.

It is valid until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud — provided it is changed in the legally required manner. Changes in circumstances after the execution of the will, such as tax law amendments, birth of children, deaths, marriage, divorce, or even a substantial change in the nature or amount of your assets, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will, and may make it advisable to change the will to conform to the new situation.

No. If there is property to be administered, taxes to be paid, or both, the existence of a will does not increase probate expenses. A will is a crucial aspect of estate planning because it frequently reduces expenses, eliminates uncertainty as to your wishes, and provides a map for the distribution of your assets. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will or if there is no will, in accordance with the inheritance (“intestacy”) statute. So, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will sets out procedures to simplify the administration process.

No, but a trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of yours that is not placed in the trust, either during life or at death, escapes the control of the trust. It is the will that controls all property in your name at the time of death, as long as the will is drafted properly. Properly drafted trusts can be helpful to speed administration and save taxes, and are funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, instead of lowering it. Furthermore, it is the probate of the will that can clear creditors’ claims, which is not possible with just a trust administration. If you need help properly drafting your will, get in touch with the family law and estate planning attorneys at The Wheeler Firm in Florida.

No, but documents must be filed with the court to procure a probate order and administer estates. In most counties, neither the estate attorney nor the interested persons ever appear in the courtroom.

You wouldn’t employ “just anyone” to fill teeth, take out an appendix, or deliver a baby. Except in a dire emergency, such important tasks should not be performed by anyone except a trained professional. The drafting of a will involves professional judgment that can be obtained only by years of training and experience. Only a practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for your individual situation. Contact The Wheeler Firm today!

Marriage does not cancel a will in Florida, but a spouse acquired after the execution of your will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half). If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in the state. Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining the witness’s oath after your death. No matter how perfectly a will may be prepared, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how and in what order, the will should be signed. Every person owning property who wishes to exercise control in the disposition of that property after death should have a will, regardless of the value of the property. Of course, the larger the estate, the greater the tax consequences.

The following additional documents should be considered for signing when you make your will: Living Will: Florida statutes now provide for a written declaration by an individual specifying directions as to the use of life-prolonging procedures. Power of Attorney: This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying your bills and protecting your assets. A power of attorney is no longer valid or enforceable after your death. Healthcare Surrogate: Florida law now allows you to designate a person to make healthcare decisions for you when you may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures. Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you – and/or over your children – should you become incapacitated, or upon your death. If you fail to designate a guardian, the court will do so for you if it becomes necessary. At The Wheeler Firm, we’re here to help you and your family gain confidence that your wishes will be honored at death. We will help you understand your estate planning and Last Will and Testament options, and assist you in choosing the best path going forward — so you and your family are secured. Reach out to us today to get started, or call us at (850) 273-6930.