When thinking about developing a comprehensive estate plan, a Last Will and Testament (“Will”) almost always comes to mind. And for good reason. Wills are certainly an important part of any estate plan.
But did you know that there are different types of Wills?
When drafted by an experienced estate and probate lawyer, a Last Will and Testament is not a “one size fits all” document. The Will drafted for you by your lawyer is the one that best suits your specific needs, family situation, and wishes.
And it’s important to get this right.
Because while there may be different types of Wills available, not all of them are valid in all states. For example, nuncupative (or oral) Wills and holographic (handwritten) Wills are not recognized in Florida.
What type of Will you need for your estate plan will depend on what state you live in as well as the facts of your particular situation. Wills are formal legal documents that must strictly comply with statutory requirements in order to be valid.
And no, you cannot avoid probate just because you have a Will.
Because when a person dies, his or her Will must be submitted to the probate court and be “proven” before the probate process —which results in the decedent’s property being
distributed to his or her heirs —can begin. This means, then, that evidence must be submitted to the court establishing that the Will was properly executed, and thus is valid. In Florida, Wills that are “self-proving” can be admitted to probate without additional authentication. Although most people now use living trusts rather than Wills to distribute their property, Wills are still an important part of estate planning.
Which is why it is good to know a little bit about the various types of Wills that are available.
Here are 4 different types of Florida Wills.
1. A “Simple Will.”
This is the Will you think of when you think of a Last Will and Testament. It is a written document disposing of a person’s property. As the name suggests, a “simple” Will is used for simple or modest estates.
But that doesn’t mean that it’s simple to draft. Make no mistake: estate planning is a complex and specialized area of law. So, even if you don’t own a lot of assets or don’t have complicated situations (like blended families, or special needs loved ones) to deal with, you should still seek estate planning assistance when it comes to drafting your Will.
A “simple Will” refers to a basic Will in which you can designate a personal representative, appoint a guardian for minor children, and leave property to your heirs and beneficiaries.
Having a simple Will is certainly better than dying with no Will at all (i.e., intestate).
But it isn’t suitable for all estates. For example, a simple Will would not be appropriate for an estate that has a lot of assets or businesses or complicated situations that need to be addressed.
2. Pour-Over Will
Most estate plans no longer rely solely on having a Florida Last Will and Testament for distributing property after death. Instead, most estate plans Samantha J. Fitzgerald drafts for her clients include drafting a revocable living trust (“living trust”).
“Pour-over Wills” are specific types of Wills that are used with revocable living trusts. The purpose of a pour-over Will is to make sure that any property accumulated before death that the decedent did not transfer into his or her living trust, and thus needs to go through probate, ultimately gets into the trust. A pour over Will, then, directs that any property that did not get transferred shortly before death, be “poured over” into the living trust.
3. Mirror Image Will
Joint Wills —in which married couples both sign one Will—are not recognized in Florida. Instead, Florida uses “mirror image” Wills. These are actually two (2) Wills. Most frequently mirror Wills are executed by married couples. In most mirror Wills, each spouse leaves his/her entire estate to his/her surviving spouse, yet each individual retains the right to alter/change his or her Will.
4. Out-of-State Wills
With the exception of nuncupative (oral) Wills or holographic (handwritten) Wills, if you have executed a Will in some state other than Florida, generally speaking, it will be valid and recognized in Florida.
This isn’t always the case. And because Florida’s estate planning and probate laws are particular to Florida, many Wills drafted by out-of-state attorneys are not valid in Florida. So, if you move to Florida from a different state, it is best to consult a Florida lawyer regarding the validity of your out-of-state Will.
Protecting Your Family is Just a Phone Call Away.
Wills are not “one size fits all.” Nor should your estate plan be. At the Law Offices of Law Offices of Samantha J. Fitzgerald, 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.