Orlando Will Lawyer

Protecting and Preserving Your Final Wishes

Attorney L. Reed Bloodworth is the managing partner of Bloodworth Law, with offices in Orlando, Florida, and Winter Haven, Florida.

At Bloodworth Law, our team handles estate planning services for clients across Florida and can work with you remotely, via Zoom video conference, or in the office with the appropriate safety measures taken to protect you as we help you with your legal needs.

What Must Be Included in a Last Will and Testament?

What should be included in a proper Florida last will and testament?

• A residuary clause
• A personal representative
• A guardianship
• A living will

Residuary Clause

There should always be a residuary clause stating where your assets will go. You can name specifics, or you can provide a residuary clause, which is the catchall.

An example of a residuary clause is: “I leave the remainder of my estate to Bob, OR, to Karen and Steve,” because you can name multiple people.

Without a residuary clause, the state’s intestate statute may apply.

Personal Representative Named

A will should always name a personal representative. A personal representative acts as a fiduciary and is the executor of an estate of a decedent.

If you don’t name a personal representative, the court will have to select one, and that could be anyone who applies. There are established rules for the personal representative because they have to qualify.

A personal representative living within the state of Florida can be anyone who is not a felon but who is:

• A family member
• A distant relative, or,
• A friend

If a friend or other non-relative is named a personal representative, they must be a Florida resident.

But, out of state relatives may still be named your personal representative.

Guardianship

A will should always have a guardian named if you have minor children.

What is a guardian? A guardian is the person you’re choosing to take care of your children and your children’s property and or assets if something should happen to you, the parent, or both parents.

The court defers to whoever is named, as long as they’re qualified through background checks and guidelines within the statute. If you don’t name a guardian, then someone who is related to you can come in and petition to become a guardian, and it may or may not be someone you want.

Living Will

An additional document you should prepare with your Last Will and Testament is a living will.

A living will controls the medical decisions to be made concerning you. When we create a living will, we have our clients affirmatively put their initials next to those specific life-extending efforts — whatever they may be.

To summarize, the most important parts of a will are the residuary, your personal representative, if you have children, naming the guardian, and a living will.

Signing the Will

Finally, the Will must be signed by you, it must be witnessed by two people, and preferably using a self-proving affidavit where all signatures take place in front of a notary at one time.

Consider a legal consultation with a Florida estate planning attorney to review an estate plan put in place years ago. If your marital status has changed, or you had considerably more or fewer assets, a review of your estate plan will ensure that your plan is in compliance with Florida law.

What Is A Self-Proving Affidavit?

At Bloodworth Law, we always attach a self-proving affidavit to a will that has the testator signing again, the witnesses signing again, and the notary signing, so everyone is signing in the presence of each other, swearing and affirming that they’re all witnessing each other sign this legal document at one time.

This is important for a number of reasons. For example, in many instances, witnesses die or they move. Sometimes, you cannot find both of the witnesses. Sometimes, a witness may not remember signing the will, or when you find the two witnesses, one of them has dementia.

You may feel confident that the will you created is legal, but if you are a resident of another state who moved to Florida, you may have problems.

Moved to Florida? Your Will May Be Invalid

If you created a will by yourself with no legal advice from a Florida estate planning attorney, the will may not comply with Florida law, and it may be invalid.

You may have created your will while you had fewer assets, or you may have been estranged from a spouse. There are many reasons why you should not create a will without an attorney because the entire point of creating and updating a will is to put everything in writing, and have it witnessed and notarized.

Over 18? You Need Estate Planning

Creating a will and estate planning is not a do-it-yourself project. If you’re over 18, you should have your estate planning completed, and your legal documents reviewed by an attorney.

What is the Intestate Statute?

The intestate statute provides a breakdown similar to a flow chart of who gets what instead of you deciding who receives what.

You may have a child you don’t want to receive any inheritance because they have substance abuse issues, or you may be estranged from a child.

If you do not have a will, and you have children, and you don’t have a spouse, then your assets will go to your children.

What is a Guardian’s Role in a Will?

The guardian named in the will is the assumed guardian. The person named must still qualify in the same way as any other appointed guardian.

A guardianship must still be established. This means that the person named in the will to be the guardian must petition the court for guardianship.

The will can name a different guardian of the person than a guardian of the property.

Benefits of Naming a Guardian

The advantage of naming a guardian in the will is that the parents know who they believe would be the best guardian of their child or children, or the person who they are caring for.

Another advantage is that a guardianship helps eliminate arguments within the family as to who should be the guardian.

Preneed Guardianship

An alternative to naming a guardian in the will is to name a Preneed Guardian, which means to plan a guardian prior to death.

Both parents must sign a declaration in the presence of two witnesses naming a preneed guardian. The document must be recorded in the clerk’s office.

Upon death or incapacity of both parents, the preneed guardian assumes the duties of the guardian.

Formal Petitioning is Still Required

The preneed guardian then has 20 days to apply for confirmation of appointment. Again, this is the formal petitioning for guardianship.

The court is not obligated to follow the written declaration, but by naming the guardian, this creates a rebuttable presumption of qualification.

It’s never been more important that your probate and estate planning documents comply with Florida law. Talk with an experienced attorney to protect you and your loved ones.

What Is A Sweetheart Will or Trust?

What is a sweetheart will or trust? Reed explains that “it’s a commonly used trust or estate planning device whereby spouses, or couples, design their will or trust, or the combination of the two, to leave the other spouse everything upon one of their deaths.”

A Sweetheart Will Or Trust Is An Estate Planning Device

“So for example,” Reed said, “if the husband passes away first, his will and or trust would leave everything to his wife.

“The second part of that is a typical sweetheart will, or sweetheart trust, in addition to leaving everything to each other, upon the death of one in the couple, upon the death of the second spouse, everything is typically then divided amongst the children.”

Leave All Possessions To My Wife/Husband

“So, the husband’s will, or trust, would say essentially, ‘upon my death, I leave all of my possessions to my wife.’

“First, it would say, ‘if I predecease my wife, then all of my possessions are hereby bequeathed, and left to my wife.'”

All Possessions Are Left To My Children

“And then it would say, ‘however, if my wife predeceases me, upon my death, all of my possessions are left to my children, in this fashion.’ And that could be in equal shares or different percentages,” he said. “But that is the typical makeup of a sweetheart will or sweetheart trust.

“They’re common, and there are not many problems with that style of estate planning.”

Problems After Widowed Spouse Gets New Estate Plan

Reed said that “problems arise when the children are under the impression that these estate plans are going to remain in place after one of the parents dies.

“Let’s say after Dad dies, everything goes to Mom. Well, then Mom goes and gets a new estate plan. And maybe doesn’t tell the children, and then you have the issue of, ‘well, she changed it, and she wrote one of the children out.'”

Biological Children vs. Stepchildren

“So there are a lot of situations after the first spouse passes away, where issues can arise,” Reed said. “That’s a big one: the biological children versus the stepchildren.

“That’s probably the biggest issue involved when one of the parents passes away,” he said. “Problems after a sweetheart will or trust occur after the widowed spouse has done new estate planning.

“You had the sweetheart will or trust. The parent got everything from that marriage. And then, that parent remarries, and then new estate planning is done. No one knows what’s in that estate planning.”

Parent Starts To Lose Their Mental Capacity

“And sometimes, that’s the situation where you see perhaps that parent starts to lose their mental capacity,” Reed said. “And, all of a sudden, new estate planning is prepared, where the biological children don’t get anything, and the stepmom, and oftentimes the stepmom’s kids, get it all.

“That can be problematic. So, it’s not necessarily the first step in the sweetheart will or trust that’s problematic. That’s common. There’s nothing particularly wrong with that.”

Second Spouse Can Do What They Want

“It’s after the first spouse dies, the second spouse then has the ability to do whatever they want with their estate planning,” Reed said. “And that’s when things can change, and disagreements can come up amongst children, or whomever believed they were receiving an inheritance from those parents.

“And they don’t know until after someone has passed what will happen. But even that depends upon whether the kids or family are asking, or unless the parents tell them, or, the surviving parent tells them.”

Be Open About Your Estate Planning With Family

“That’s something I often advise my clients of, is to be open about your estate planning with your family, so that there really aren’t surprises,” Reed said.

“I know it can be a morbid topic, but I think a lot of issues that occur after the death of parents, or whoever else it may be, bequeathing something to someone. If conversations had been held while those people were alive, I think a lot of probate and trust litigation could be avoided.”

“I’m not saying all of it, obviously,” Reed said. “There’s always situations where you have bad actors, and they sweep in and get estate planning drawn up at the last second. Those are different types of situations.”

Family Should Talk About Estate Planning

“But when we’re talking about a family unit, even in the case of divorces — you need to talk about it,” Reed said. “And it can be difficult, but it’s something that I would encourage people to do.

“I think it really would help avoid confusion, and surprise, and reduce the risk of litigation arising out of probate or a will, or a trust.”

What is a Holographic Will?

The first question is, what is a holographic will? Holographic wills are handwritten and signed only by the testator, without the signatures of witnesses. Holographic wills are not recognized in Florida – meaning they will not be accepted by a Florida probate court.

However, a handwritten will that is properly signed and witnessed by two competent people can be validated as a proper will and is not considered holographic.

Florida law specifically excludes two types of wills:

• Holographic Wills and Oral Wills
• An Oral will, or Nuncupative Will, is one made verbally in the presence of witnesses, often by terminally ill individuals when a written will is not possible. Florida does not recognize Oral Wills.

Is an Electronic Will Legal in Florida?

The next issue that I’ll talk about today is whether an electronic will is legal in Florida.

In 2017, the Florida legislature passed the Florida Electronic Wills Act, which allowed a last will and testament to exist as an electronic record.

Pursuant to the Act:

• Testators signed electronically but in the presence of at least two witnesses
• Witnesses were required to see the testator sign the will by video and then sign electronically themselves

The Act also set requirements regarding video and audio quality, the preparation of a transcript of the will signing, and the proper storage of the electronic will.

It also required the notary seal on a self-proving will to be included with the notary signature.

However, Governor Scott vetoed the Florida Electronic Wills Act, citing concerns about authenticating identities and storing the will.

Scott expressed the importance of finding “the right balance between providing safeguards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible.”

What is the Spousal Elective Share?

The final question I’ll address today is, what is the spousal elective share?

Elective share law provides a statutory amount of assets that a spouse is entitled to receive when the other spouse dies.

Florida elective share law is intended to protect a surviving spouse who has been disinherited or left only a small portion of the estate. The theory is that much of the property of a married decedent will be marital in nature, regardless of how the title is held. The protection provided to the surviving spouse is similar to that afforded by property division in a divorce.

Under Florida law, you cannot intentionally disinherit your spouse unless your spouse agrees to receive a lesser amount from your estate in a Prenuptial or Postnuptial Agreement.

What is a Living Will?

One of those documents is a living will. What is a living will? A living will is one type of Florida advance health care directive. This is not a will that provides instructions for the distribution of property after your death. A living will is effective during your lifetime and shares the health care you want, or don’t want, if you’re unable to talk, are incapacitated, or unconscious.

The purpose of a living will is to ensure that your wishes with regard to your medical care are carried out, even if you cannot speak for yourself.

What Are Your Medical Care Wishes?

A living will is a written document stating which medical procedures you would want, that you would want withheld, or that you would want withdrawn at the end of your life, or in a medical emergency.

Without it, there may be challenges for you or your loved ones if you become seriously ill, injured, or are in an accident. Critical health care decisions must be made when a person is incapacitated, has dementia, or whose cognition is affected by a physical illness and is unable to state their wishes.

No Living Will? Your Decisions Aren’t Included

A living will is one of many documents included in an estate plan. By having an attorney handle your estate planning while you’re healthy, you’re able to set up all the legal documents and financial plans needed to protect you, your children, your family, and your lifestyle.

Estate Planning Creates Necessary Legal Documents

Estate planning puts all of your legal and financial documents together with specific advance instructions and plans for the best and sometimes the worst circumstances.

To begin your estate planning, talk to Reed about how Bloodworth Law can help you and your family.