Collier Edition


By Bonie Montalvo


A will is a legal document that sets forth your wishes regarding the distribution of your property. A will allows you to decide how your assets (memorabilia, family heirlooms, real estate, etc.) will be distributed. Should your three children inherit your house as tenants in common? Or should the oldest child get the business assets, the middle child the house, and the youngest child the residue or balance of your estate?

If you have minor children, a will is simply a must. A will allows you to designate a guardian for your minor children. Designating a guardian also gives you the opportunity to talk to the intended guardians and let them know that you are considering them to take care of your child, this is extremely beneficial since this will allow you to know if they’re up to the task.

Also, there are many couples out there who live together but are not legally married. If you want to benefit your significant other, you need to execute a will—otherwise your assets will be distributed among your family members, and if you have no family members, your assets will go to the State!

What Happens If I Don’t Have A Will?
If you do not have a will, you die intestate (meaning that you died without a will). If you die intestate the state oversees the distribution of your assets. In Florida, Chapter 732 of the Florida Statutes will apply and determine who gets your assets. For example, if you have no spouse, your assets would be distributed to your three children equally, meaning that your oldest child—the one most knowledgeable and interested in the family business—may not receive the business or may have to share ownership with his siblings.

When you die intestate and have no surviving family, all of your assets (your “estate”) will escheat to the state, meaning that the State of Florida will receive your estate. Even if you do not have family, it is important to have a will, since it will let you distribute your assets to a charity of your choice rather than the State.

There are certain assets that are not impacted by your will designation, and these are generally called “non-probate assets.” These are assets that already have a beneficiary designation, such as an IRA account, life insurance, payable on death accounts, property titled with rights of survivorship, and other documents that already have a designated beneficiary.

Is My Will Valid in Florida?
There are different types of wills, and every state has different requirements to what amounts to a valid will within their jurisdiction. Florida requires a self-proving will, meaning that the will is formally prepared and signed in the presence of two witnesses. In order to be valid, the will must be typewritten or computer-generated—it cannot be handwritten. Other states accept holographic wills and even nuncupative wills. Holographic wills are wills that are written by the testator (person making the will) without the presence of witnesses. Nuncupative wills are oral testaments given before witnesses, while nuncupative are not that popular, they are recognized by some states.

If you create your will in Florida, your will is only valid if it is written and witnessed by two witnesses. Florida does not accept holographic or nuncupative wills, even if these wills were valid in the state where they were executed. However, Florida will accept a handwritten will if it is witnessed and if it was valid in the state or country where the will was executed. If you execute a will in Florida, it will be invalid if (1) it is an oral will; (2) if it is handwritten; or (3) if it is handwritten even if witnessed by two witnesses. If executed in Florida, the only will that is valid is the self-proving will.

Can I Modify My Will?
Wills only come into effect at our passing, as such they can be modified anytime while we are alive. Wills are often modified to reflect a change in your circumstances, for example, you acquire a new business or there is a newborn in your family. You can modify your will by a “codicil” which serves as an amendment to your will. In certain circumstances you will want to revoke your existing will and execute a completely new will. Many of us wait until our later years to think about estate planning, however, it is best to execute your will sooner rather than later, when you are of sound mind and in good health, for it could prevent a myriad of challenges and contests down the road.

If you are looking to create a Florida-compliant will, modify or revoke and exiting will, or want to learn more about your estate planning options, contact our offices at 239-552-4100.

Bonie Montalvo practices in the areas of estate planning, business succession planning, tax planning, and not-for-profit law. Ms. Montalvo has her LL.M. in Taxation from the University of Florida and is fluent in Spanish.

Wood, Buckle & Carmichael Attorneys at Law

2150 Goodlette Road North . Sixth Floor . Naples, Florida 34102

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