What is a will?
A will is a person's expressed intention of what should be done with his or her property after he or she dies. The person making the will is called the testator. A will can express the testator’s desire to revoke a prior will, the manner in which the testator’s property is to be distributed on or after death, or appoint a personal representative to administer the testator’s estate or assets upon the testator’s death. Frequently, wills do all three of these things.
What is probate?
Probate is the court-supervised procedure by which a will is proved to be either valid or invalid. If the court approves the will as valid, it is then admitted to probate and it provides the personal representative or executor with the authority to gather and distribute the assets of the decedent’s estate. When a will is challenged in a court of law after the testator’s death, it is for the probate court to determine the rightful beneficiaries and distribution of property under the will.
What is a trust?
A trust is brought into existence when a person (called the "settlor") transfers some of his or her assets to trustees (who become the legal owners of the assets) for the benefit of third parties, called "beneficiaries" (the beneficial owners). A trust is a legal entity in itself. Sometimes trusts are created under a will (testamentary trusts) and sometimes they are created during the lifetime of the settler (inter-vivos trusts).
Can a will be changed or modified?
Yes, a will can be changed or modified if the testator is competent. A new will or a "codicil" can be executed to revoke prior wills and create a new scheme for disposing of the testator's property. A will should not be changed simply by writing something in or crossing something out after the will has been executed because that may invalidate part or all of the will.
Who should draft my will?
To ensure that your will is valid and legally enforceable to distribute your property in accordance with your wishes, it is important to have your will drafted by an experienced will and probate attorney such as Mark E. Parsons. Personally-drafted wills are often incomplete and therefore invalid under state law. Furthermore, an experienced attorney can advise you about the tax advantages or other benefits of a well-drawn will and other estate planning options, such as insurance, investments, or trusts.
What is a personal representative and what are their obligations?
The person who represents the decedent’s estate is called several different things, depending on state law. Traditionally, the person appointed by a will to represent the estate is called the executor (or executrix, if female). In Florida, the person appointed by a court to represent the decedent’s estate is called the personal representative.
The personal representative’s responsibilities include:
- giving the proper notices to the proper parties, such as creditors of the estate.
- employing the professionals needed to assist in the estate’s administration, such as attorneys, accountants, and appraisers.
- collecting and safeguarding all of the decedent's property.
- receiving claims against the estate.
- paying just claims and disputing improper claims.
- filing tax returns and paying any required taxes.
- paying the expenses of administrating the estate.
- paying the amounts due to the decedent’s surviving spouse and family that are statutorily due under state law.
- distributing the estate property according to the will or state law.
- closing the estate.
Is a will drafted by any competent person considered legal?
To make a valid will in Florida, the testator (the person for whom a will has been created) must be at least 18 years old and of sound mind at the time the will is signed. The will must be written and it must be signed at the end by the testator or by a proxy acting at the testator’s direction. The testator’s signing must be done in the presence of two witnesses (known as "attesting witnesses"), and then the witnesses must sign the will in the presence of the testator and each other. A holographic will that is made in the testator's handwriting and signed only by the testator is invalid under Florida law unless it is witnessed and signed by two attesting witnesses, as required by statute. Although there is no age-limit for the attesting witnesses and no statutory prohibition against the witnesses being beneficiaries under the will, it is best if the witnesses are disinterested adults. Beneficiaries might be accused of exerting undue influence over the testator, or the credibility of beneficiaries or minors might be questioned if they are later called upon to prove the specific contents of a lost will.
How can a person contest a will?
A person contests a will by filing the relevant documents with the probate court. The person normally must be "interested" that is, must be an heir under the will or at law. Valid grounds for contesting a will include fraud, the incapacity of the testator, or the exertion of undue influence or duress over the testator. There are time limits for contesting a will which vary by state.
