At the time of your death, your personal representative has to file your Will with the probate court.
There is plenty to know about drafting and filing a Last Will and Testament (“Will”) in Florida. Working with an estate and probate lawyer to make sure your Will is correctly drafted and properly filed with the probate court can give you peace of mind.
In this post, however, we are going to look at only 2 facts that you should know about filing a Will in Florida.
So let’s get to it.
Creating a Valid Will in Florida
Creating a Last Will and Testament (“Will”) with the help of an experienced Florida estate and probate lawyer can be a great way to plan ahead for the future. It provides you with the peace of mind that at your death, your loved ones will be taken care of in accordance with your wishes. And you can also be certain that one of the most important legal documents you will ever create in your life —your Will—was done professionally and correctly.
Because when it comes to Wills, Florida law is very particular.
Unless a Will conforms exactly to the law’s requirements, it will be held (partially or fully) invalid.
Which means that either the entire Will is going to be useless, or certain bequests will not go to the people you want them to.
As you know, when it comes to Wills, problems only show up once you are gone. And then, because you are no longer here, fixing a problem with a Will —whether it is an ambiguity or invalid bequest or whatever—is going to be either impossible or extremely costly to do. So if you don’t get it right, there is often very little that can be done to salvage an improperly drafted or improperly executed Will.
So, what makes a Will valid in Florida?
First and foremost, for a Will to be valid in Florida, it must strictly comply with all statutory formalities. This means that the Will must:
- Be in writing
- Be made by a person with testamentary capacity, meaning a person who is 18 or older and is of sound mind
- Be signed by the testator at the end of the Will
- Be signed by the testator in the presence of two witnesses, who must witness his/her signature and sign the Will in the presence of the testator/testatrix and in the presence of each other.
Sound confusing?
Don’t worry. An experienced Florida estate and probate lawyer can help you with creating and filing a Will.
The reason why Florida requires proper Will formalities and is so strict about making sure that each Will complies with those formalities is because having those specific Will formalities is one way of ensuring that a Will honestly states the desires and intentions of the maker of the Will. This is critical because, as you know, a Will disposes of valuable tangible and intangible property.
The failure of a Will to comply in all respects with these legal formalities —even if it is only one of them—can invalidate either the entire Will or a portion of it.
As we will discuss more fully below, one of the first steps in the probate of any estate is the presentation of the Will (if there is one) to the Florida probate court.
Before the assets of an estate can be disbursed, the probate judge reviews a decedent’s Will and declares it to be either valid or invalid (either in whole or in part).
Having a Will is important if you are an adult and have an estate of any size. But making sure that that Will is properly drafted and executed is essential.
Probate and Filing a Will in Florida
Let’s assume that you do have a valid Will.
What happens after you die?
Your estate (i.e., your assets) must go through probate before your assets can be distributed to your heirs.
If the decedent (you) did not have a Will, then the probate court will follow Florida’s intestacy laws to determine who gets what.
Many people mistakenly believe that as long as they have a Will, they can avoid probate.
But that is not accurate.
Having a Will does not avoid probate—because probate is the legal process for distributing a decedent’s assets.
What it does do, however, is avoid having your entire estate go through the long and expensive probate process where your property is distributed in accordance with the intestacy statutes. Having a valid Will makes the administration of your estate faster and less expensive because the process can proceed according to the terms of your Will.
Which brings us to our 2 fast facts about filing a Will in Florida, because the first step in the proceedings is to file the Will with the probate court.
2 Fast Facts About Filing a Will in Florida
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The Personal Representative Files the Will with the court
After death, the personal representative named in the decedent’s Will (or the executor) must file or register the Will with the court. An estate and probate lawyer can also file the Will on behalf of the personal representative.
Importantly, however, the Will that is filed with the Court must be the original Will.
The original Will must be deposited with the clerk of the Court having the venue of the decedent’s estate within 10 days of decedent’s death.
The custodian of the Will must also provide to the clerk the date of the testator’s death or the last four digits of the testator’s social security number.
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The Will must be filed in the proper venue
A person’s Will cannot just be filed anywhere. It must be filed in the proper venue.
In law, “venue” refers to the proper location for filing a document or bringing a lawsuit.
For purposes of an estate administration and filing of a decedent’s Will, the custodian of the Will must file the original Will with the clerk of the circuit court in the county where the decedent lived at the time of his/her death.
Understanding probate and all its aspects is important. Engaging a probate lawyer will save you time and money.
We Handle Wills and Trusts in Florida
If you need help filing a Will, have probate or estate planning needs, protecting your family is just one phone call away. At SJF Law Group, we create estate plans as individualized as you are. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Connect with us on Facebook or Instagram or call us at 954-580-3690.