Probate and Having a Valid Will

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WILL BASE PLANNING FOR FLORIDA PROBATE

A last will and testament is a document you create to instruct how you want your property distributed upon your death. Who gets the house? Who gets which antiques? Who gets a bank account? Who takes care of the pets? These are just some of the questions upon which a will answers and instructs, and just some of the information we will obtain to draft a solid last will and testament that can stand up in probate and prevent challenges to its validity.

Florida Attorney Andre Mckenney-Dorval will review your assets and discuss with your options with regard to your will-based planning. Making sure your goals for today and tomorrow are met is our personal goal at TCB Legacy Law. Contact us online at https://www.tcblegacy.com/contact-us or at 954-302-8989 to learn more about wills specifically and the probate process generally to ensure that your last wishes are met, and heirs are left with a legacy rather than challenges or difficulties.  

What is the Purpose of a Will in Florida?

The person creating a Will is known as a testator. The testator devises property and assets to named beneficiaries in a Will. This gives testators far more control over assets – both while they are alive and after they pass away.

As such, the Will serves four general but important purposes:

  1. They allow property owners to control what happens to their belongings, even after they die.
  2. They incentivize productivity by allowing people to control what happens to their property after death.
  3. They protect the decedent's heirs, including minor children by appointing a guardian.
  4. They allow you to appoint who you want to oversee the estate.

In order for your Will to achieve your goals as intended, it must be properly and legally executed in accordance with Florida Law.

General Requirements of a Will in FLORIDA

Each state's requirements of a Will and what makes it valid may differ somewhat, but all states have four requirements that are true no matter what. 

  1. The testator must have testamentary intent, meaning the testator subjectively intended to create the Will.
  2. The testator must have testamentary capacity, meaning that they understood they were creating the Will at the time of its execution.
  3. The Will must have been executed without the interference of fraud, duress, undue influence, or mistake.
  4. The Will must have been duly executed through a proper ceremony––which means the testator and two witnesses must be present at the same time and sign the will in front of each other. This is known as the presence requirement.  Any competent person can serve as a witness, but it is best not to have someone who is related to the testator or who will inherit from the will. 

Intestacy: The "Default" Will Method if You Die Without a One

If someone dies without a Will, this is known as dying "intestate." Should a person die intestate, Florida intestacy laws sets forth who inherits and how property is distributed.  There are two key reasons to create a Will, rather than relying on intestacy laws to devise your property, and the reasons relate to family and probate matters. 

Family

Intestacy laws aim to pass property in a way that most people would want it to pass, which basically means any property is passed to immediate family members first, like children, then parents, siblings, grandparents, and so on. Intestacy laws only benefit you if you are happy about your hard-earned property going to your immediate family member. 

The problem here is that if you no longer have a relationship with a family member, that may not be taken into consideration under Florida's Intestacy law when it comes to disbursing your assets. This could result in property, (or even the custody of a minor child) passing to a relative whom you would not wish to be a beneficiary and/or guardian.

Probate

Property governed by intestacy law must pass through probate court, first, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions. The only difference is a well-crafted last will and testament will go through probate rather quickly and without incident because it's harder for someone to challenge it. 

Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. When working Attorney Andre Mckenney-Dorval she will help you determine what planning will work best in your specific situation and with your specific assets.  

The Risks of “Do-It-Yourself” Wills in Florida

The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a will, has led to a huge increase in the use of “do-it-yourself” wills. These forms, often found online for a fee, claim to be just as good as a traditional will prepared by an experienced attorney.  

These "one size fits all" documents, however, are not tailored to your unique circumstances. The process to create a DIY will is often accompanied by mistakes that open the door for challenges to the validity of a Will upon your death. In fact, a court may dismiss the Will completely.

If you decide to try a DIY Will first, keep the following five tips in mind:

  1. Define who your family members are. For example, if you brought children into a second marriage, make sure who constitutes “family” in your Will.
  2. Assign and direct the executor to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
  3. Make specific bequests or gifts so that there is no confusion about who gets what.
  4. Provide a catch-all clause for assets that you do not specifically give away.
  5. Finally, be specific about people and property as much as you can. Wherever there is any ambiguity there is also room for a challenge.

That said, in the least, it is a good idea to have an attorney review your last will and testament to make sure it's in compliance with Florida Law.

Contact an Attorney Andre Mckenney-Dorval for Wills in Florida

If you are considering making a last will and testament, make sure that you comply with the law and provide very specific instructions in the will. At TCB Legacy Law, Attorney Andre Mckenney-Dorval helps clients in Hollywood, and all throughout Florida create strong Wills that comply with Florida Law, so you don't have to worry about it. We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us online https://www.tcblegacy.com/contact-us   or calling us directly at 954-302-8989 to schedule a Consultation or Strategy Session.

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TCB Legacy Law Is Here for You At TCB Legacy Law, we focus on Probate and Immigration and we are here to listen to you and help you navigate the legal system.

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