Talk of The Villages Florida

Florida Statute 732.502 sets forth the requirements for the execution of a will. All Florida wills must be in writing and signed by the testator at the end of the will in the presence of at least two attesting witnesses. The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. Holographic wills are not valid in the State of Florida. Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, is a valid will in Florida if it is valid under the laws of the state or country where it is executed. No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. A codicil to a will shall be executed with the same formalities of a will.

Florida statute 732.503 provides that A will or codicil executed in conformity with Florida Statute 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will. A will that is self proving can save much time and expense in the probate process. However, many states do not have a self-proving will statue. I recently opened a Florida estate with a will that was executed in Maryland which was not a self-proving will. In order to have the will admitted to probate, I had to have the Florida court appoint a commissioner in the State of Maryland who was given the task of having the witnesses to the will sign an affidavit acknowledging that they were the people who actually witnessed the will. Fortunately, the will was executed within the past few years and we were able to find all of the witnesses. However, you can easily see how hunting down a witness to an old will in another state years or decades later could be problematic.

The laws from state to state vary. It has been my experience that while setting up your estate plan a particular way in one state may make perfect sense under the laws of that state, it may not be advisable under Florida law. Traps for the unwary in Florida, include but are not limited to, specific laws on how you can devise your property (“elective share”), limitations on who you can appoint as a personal representative in Florida, and Florida’s homestead laws. Florida has no state estate tax, but if you own property in another state that has a state estate tax, you may still be required to pay state estate tax upon your death if you do not have proper planning.

In addition to a will, any basic estate plan in Florida should also include a durable power of attorney (The power of attorney statute just changed in October), Living Will, Designation of Health Care Surrogate and a Preneed Guardian. As part of any estate planning consultation I take time to inform clients as to how they should title their assets to provide the best protection from creditors during life and after their death. It has been my experience that many people think that it is necessary to create a trust in order to avoid probate. While there are good reasons to create a trust and sometime a trust is necessary to avoid probate in both Florida as well as other states where you many own property, clients are often surprised to learn that if an estate is planned properly there will often be no probate required upon the death of the first spouse. Obviously every estate plan is different and will be tailored to address your family dynamics and tax needs.

If you have recently moved to the State of Florida you should always have your estate planning documents reviewed by an attorney that is licensed to practice in Florida and familiar with the numerous pitfalls and traps for the unwary that exist. Having your estate plan in order can provide peace of mind and avoid litigation after your death. My practice focuses primarily on estate planning. The best part about an estate planning consultation is that it is FREE. As part of any estate planning consultation, I would be happy to speak with your prior out-of-state attorney if you would like for me to do so. If you would like to schedule an appointment, please give me a call at (352) 365-2262.