Polk County Wills Attorneys

A last will and testament is a critical document included in nearly every estate plan. A valid will simplifies the legal process and ultimately reduces the burden on your heirs, reduces legal expenses, and ensures that your property and other assets are handled according to your wishes. Given this, your last will and testament is an important document. And, as you’ll read in greater detail below, it’s vitally important that you meet Florida’s legal requirements to ensure the will’s validity and enforceability.

At Mint Law Firm, we understand that creating a last will and testament is a deeply personal and important decision. Our experienced attorneys are dedicated to helping you protect your assets, ensure your wishes are honored, and provide peace of mind for your loved ones. Whether you’re planning for the future or need to update an existing will, we offer expert guidance to ensure that your last will and testament is clear, legally sound, and reflective of your unique needs and desires. With a focus on personalized service and meticulous attention to detail, Mint Law Firm is here to help you navigate this important legal step with confidence.

What Is A Will and What Does it Do

A last will and testament is a legal document that codifies what you would like to happen to your property after death. Nearly every individual owns a property, which can include financial (cash, stocks, bonds, retirement accounts), real (primary and any other residences that you own), and personal belongings (everything from your phone to the dining room table).

In Florida, wills make two crucial designations. First, they provide instructions for how and to whom your property (your estate) should be distributed. Distilling a will down to its simplest form, these documents state that it’s your intention for “Retirement Account Z to be given to Individual A” and for “Car X to be given to Individual B.” Those receiving the retirement account and car are known as “beneficiaries,” as they are receiving a benefit bestowed by the will.

Second, all wills in Florida name a “personal representative,” otherwise known as the executor or administrator in other states. Naming a personal representative is crucial. This individual ensures your assets are allocated according to your will and oversees the probate process. As discussed in more detail in our probate page, several tasks must be performed when settling an estate, including but not limited to:

• Gathering and inventorying the decedent’s assets;
• Notifying creditors and paying outstanding obligations of the estate;
• Filing a final tax return and paying any owed taxes.

To serve as a personal representative in Florida, the named individual must either be a resident of Florida or a close relative (spouse, sibling, parent, child, etc.) who is not a resident of Florida but who is a U.S. citizen. The person must also be of legal age (18 years or older) and does not have a felony record.

Wills tell the world how you want to distribute your assets and who you would like to oversee this process, making this one of the most important documents you will likely ever compose. It’s because of this that the State of Florida has set out specific requirements that must be met for a will to be considered both valid and enforceable.

How Mint’s Will Attorneys Can Help

Will attorneys, also known as estate planning lawyers, trust and estate counsel, or probate lawyers, specialize in drafting and executing wills to ensure a person’s wishes are honored after their death.

• Will Drafting

  Wills attorneys assist clients in creating legally sound documents that detail how their assets should be distributed after their death. They ensure the will covers all necessary elements, including naming beneficiaries, designating executors, and outlining specific bequests.

• Legal Advice

  A Wills attorney provides expert advice on estate planning, helping clients understand the implications of various decisions. This includes advice on minimizing estate taxes, protecting assets, and ensuring that the client’s wishes are achieved effectively.

• Updating Wills

  A wills and probate lawyer helps clients update their wills to reflect changes in their life circumstances, such as marriage, divorce, the birth of children, or significant changes in financial status. Regular updates ensure the will remains relevant and accurate.

• Executing Wills

  After a client’s death, a probate attorney guides the executor through the probate process. This includes filing the will with the probate court, notifying beneficiaries, inventorying assets, paying debts and estate tax, and distributing assets according to the will.

• Contesting Wills

  In cases where there are disputes over the validity of a will or disagreements among beneficiaries, wills attorneys represent clients in court to resolve these issues.

• Additional Estate Planning

  Wills attorneys are also estate planning attorneys who often help clients with other aspects of estate planning, such as creating living wills, healthcare directives, and powers of attorney. These estate planning documents provide instructions for medical and financial decisions if the client becomes incapacitated.

Elements of An Enforceable Will in Florida

The elements necessary to create an enforceable will vary from state to state. Florida’s requirements are codified in Section 732.502 of the Florida Statutes and in case law about the subject matter.

The individual that creates the will is known as the “testator.” The testator must either sign the will at the end or the testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and at the testator’s direction. The testator must sign the will in the presence of two attesting witnesses. Additionally, the attesting witnesses must sign the will in the presence of the testator and the presence of each other. In other words, the last will cannot first be signed by the testator and later signed by one or both witnesses at a different location; all three individuals must sign the will together.

Florida law also requires all wills to be written. Note that the will does not necessarily have to be typed, and a hand-written document will satisfy this requirement. But oral or spoken wills are invalid and unenforceable in Florida. Similarly, many states honor video wills. However, Florida has established that video wills do not meet its written requirement. Sometimes, though, video recordings serve as additional evidence of intent in situations where additional explanation may be helpful.

The testator must also have testamentary capacity and be of “sound mind” to create a valid will. A “sound mind” seems like a bit of a loaded term, but the Florida Appellate Court for the Second District of Florida provides the following guidance In re Bailey’s Estate, 122 So. 2d 243 (Fla. Dist. Ct. App. 1960):

“The term, ‘sound mind,’ means the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.’”

Thus, the testator at the time of signing must understand what he/she is giving, who is receiving the property, and that executing the document will set the wheels in motion for the eventual transfer of the property included in the document post-passing.

Finally, Florida requires that the testator be at least 18 years old or a legally emancipated minor.

What if a Will Does Not Meet Florida’s Requirements

If any of the above-listed elements are missing, the probate court is within its authority to declare the entire will invalid. If/when this happens, the court will look to Florida’s intestate (without a will) laws for guidance on distribution. The distribution under this law often differs from what the testator would have intended if their will had been properly executed. In some cases, the distribution will downright go against their intention. Thus, to ensure proper distribution that comports with the testator’s intention, it’s essential to have a validly executed will.

Experienced Wills Attorneys in Polk County Can Assist

A last will and testament is a powerful tool that speeds up the probate process and ensures that your last wishes are seen to their end. Given the importance of this document, the State of Florida has set guidelines on how to construct and handle a will for it to be enforceable. On the surface, it may appear simple to draft a will. But, as explained above, the stakes are quite high because one error can lead to unenforceability and the application of state intestacy law. So, it is often best to seek the guidance of a wills attorney to ensure that this ever-so-important document is enforceable.

An experienced estate planning attorney can provide you with peace of mind and execute the proper drafting of your last will. Mint Law has attorneys on staff with decades of experience and specialized LLM (Master of Laws) degrees in estate planning. We do it daily, have drafted countless wills, and understand how to best protect your interests and ensure that your wishes are honored. At Mint Law Firm, we are committed to helping you secure your legacy and ensure that your wishes are clearly outlined and legally protected.With our personalized approach and attention to detail, you can trust that your estate planning needs will be handled with care and expertise.