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David Toback, Attorney at Law
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Tampa Wills Attorney

Everyone who is over age 18 should have a valid estate plan in place to govern the disposition of their assets in the event of their death. A will is a basic part of any estate plan, and in Florida, must comply with several requirements in order to be considered valid. If you have not prepared your estate plan, or if your will needs updating, call an experienced Tampa wills attorney today.

Most people only begin to think about estate planning when they fall ill, or as they age. However, planning for your family’s future is important for every adult to consider. Regardless of your age, marital status, or size of wealth, now is the time to create your will. If you live in Tampa and are interested in learning more about the benefits of a will, read the information below. Then, contact Tampa wills and estate planning attorney, David Toback, for experienced estate planning advice.

Wills

In Florida, a will is a written document that may serve several functions. It can:

  • Dispose of the decedent’s property;
  • Name a guardian to care for the decedent’s dependent children; and
  • Name a personal representative to execute the will at the decedent’s death.

What Can a Will Do?

A will is a legal document that allows you to make decisions regarding your property and family after your death. Through your will, you can specify your wishes for your property and assets. For example, you may want to leave a certain amount of your money to your child. Or, you may want a friend to have a special piece of your property. You can make these decisions in your will and know your choices will be respected.

A will can also do much more aside from designating who will receive your assets. In your will, you can designate a guardian for your minor children. You can appoint a caretaker for your pets, and set aside money for their needs. Additionally, you can name a personal representative who will be responsible for ensuring your will is followed. With a well-written will, you can help provide for your family’s needs after your death.

It is important to know that there are some exceptions to distributing property through a will. Under Florida law, you cannot elect to “cut out” your spouse from your estate (unless you both agree to such in a prenuptial or marital agreement). If you co-own property, like your house, state law will dictate how that property passes. In other words, you cannot pass along someone else’s share of your co-owned property through a will. Florida law also dictates exactly what makes a will valid. An invalid will is not going to be honored in court, so it is important to consult with an experienced estate planning attorney.

Intestacy

If a person dies without a will, his or her property will be distributed according to Florida’s rules of intestacy, which will likely not intersect exactly with the decedent’s wishes. In intestate distribution, property is inherited by the decedent’s closest relatives, beginning with spouse and children. If there are no spouse and children, progressively more distant relatives may inherit, including grandchildren or parents, siblings, grandparents, aunts and uncles, and so forth. If the probate court cannot find any living relatives by blood or marriage, the decedent’s property escheats to the state.

Formalities

To be valid in Florida, a will must comply with certain formalities of execution. The testator must sign the will in front of two witnesses, who must sign the will as well, signifying that they saw the testator sign it. Any codicils, or amendments, to the will must be executed in the same manner.

In many states, holographic wills, which are composed entirely in testator’s handwriting and signed by the testator, do not need to be witnessed to be considered valid. But this is not the case in Florida. Holographic wills will only be considered valid if they comply with Florida’s formalities of execution. However, out-of-state wills are valid in Florida if they comply with the formalities of the state in which they were executed, even if they do not fully comply with Florida’s requirements.

There is no need for a notary in making a valid will, unless the will is to be self-proving. If a testator’s will is not self-proving, the witnesses will have to testify in probate court that the will is valid. The probate court may accept self-proving wills without contacting the witnesses, which is faster and cheaper. To make a will self-proving, the testator and witnesses sign a notarized affidavit that proves their identities and that they knew what they were doing when they signed the will.

Testamentary Capacity

To create a valid will a testator must have testamentary capacity. This means that he or she must be over 18 and must be of sound mind. A testator is of sound mind if he or she understands:

  • The extent of his or her assets;
  • Who his or her natural heirs would be; and
  • The nature of the testamentary act.

If there is any doubt about a person’s testamentary capacity, an attorney can arrange for a psychological evaluation to help prevent the will from later being successfully contested.

If you have not made your will, an attorney can help you to ensure that it is valid and that it distributes your property according to your wishes. Please contact Tampa estate planning attorney David Toback for a free consultation.

What Happens If I Don’t Have a Will?

Dying without a valid will, called “intestacy,” means that state law will dictate how your property is divided. In Florida, intestacy laws determine property distribution based on blood relation, and your estate will be probated. So, your heirs will be your relatives, and their share of your estate is based on how closely related you are. If you have no surviving relatives, the state can take your property for its own uses. Intestacy can lead to a lengthy legal process, which can exclude friends or charitable organizations. Contact our Tampa wills attorney for more information.

Call Our Tampa Wills Attorney

David Toback, Attorney at Law, has over 17 experience helping clients plan their estates, trusts and wills. It is never too early to think about your family’s future. With a will, you can help make sure your family is provided for after your death. David Toback can help make sure your wishes are included in a valid will, giving you and your family peace of mind. Call our experienced Tampa wills attorney at (813) 231-6036 to schedule a consultation.

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