The state of Florida doesn’t recognize nuncupative, or oral wills. These are generally spoken by the testator in front of two or more witnesses when they’re on their death bed. It’s likely for concerns regarding the testator’s state of mind to come into question in such instances.

Florida also doesn’t recognize holographic, or handwritten wills. Thus, if you draft one of these in another state and move here to Miami, then your old will wouldn’t be valid per Florida law.

A will may be valid if you move from one state to another but not necessarily in its entirety. Your personal representative here in Florida must either be related to you by blood or marriage or be a resident of the Sunshine State. If you executed your will in another state and then move to Florida, you may have to name a new executor that meets the above-referenced requirements. Your will won’t likely be considered valid here in Florida unless you do.

Laws vary by state, and sometimes subtle changes can make all the difference. If you’ve created a will in one state and have recently moved here to Florida, you may want to consult with an attorney that offers advanced estate planning that’s customized for you. Your Miami lawyer can make sure that your will is still valid here in Florida and help you make the necessary changes to it if it isn’t.

It’s not uncommon for business owners to be assessed taxes when they pass away. Your company may continue to grow in value as your estate goes through probate. This can cause your company (and your estate) to have a larger tax liability than if there had been some type of business succession plan in place.

One of the best things that you can do as a Miami business owner is to leave your ownership stake in your Florida company to your other co-owners. You can accomplish this by drafting a buy-sell agreement. If you decide to go with this option, then your partners will have to automatically purchase your interest in your company should you die.

This helps reduce the chances that your spouse or another heir will inherit a company that they didn’t know how to manage or want. Any interested party may be able to purchase and use a life insurance policy or an irrevocable life insurance trust (ILIT) to cover the cost of the buy-sell agreement if there’s an issue with liquidity.

An ILIT generally doesn’t have to go through probate. This frees up any money contained in it for use in paying estate administration costs. You may qualify to have your business assets transferred to others via a grantor retained annuity trust (GRAT) or grantor retained unitrust (GRUT) once you pass on. Your estate wouldn’t incur any being assessed any taxes on the appreciation value of your home if you were to do this.

Owning a business can be very complex. Leaving it behind when you ‘re gone without a proper business succession plan in place can make it even harder for your family members or heirs to deal with things though. A wills attorney may be able to use their expertise and experience in aiding other Miami business owners can help you plan for the succession of your business so that you can rest in peace once you’re gone.

That same individual must show that they have the mental capacity to understand what the purpose of a will is. They need to know about the property that they own, who their potential heirs are and how they want to dispose of their property. This is what a person must do to show that they have the requisite testamentary capacity to draft a will.

Testamentary capacity is important. It’s common for a Miami judge to call a testator’s loved ones, doctors or attorneys into the courtroom to confirm that they had the mental capacity to understand what they were doing when they drafted their will. If the court finds that the testator did not, then they may invalidate that individual’s will.

Miami probate judges generally don’t concern themselves with whether a person lacked mental capacity before or after drafting their will. All that they’re required to make sure of is that the testator exhibited testamentary capacity at the time the will was executed. If their mental capacity deteriorates after the will come into fruition, then that generally has no bearing on the will’s validity.

If the bulk of a testator’s estate is earmarked for someone other than immediate family members, then those interested parties, or anyone who expected to be an heir, may question if the testator was subjected to some type of undue influence from someone else.

An attorney has a fiduciary duty to ensure that a person has the mental capacity to create a will. If a person has insane delusions or appears to be suffering from undue influence, then a lawyer may determine that they’re not of sound mind enough to draft a will.

If you believe that your close relative who died wasn’t mentally competent enough to draft a will or that they were subjected to the undue influence of someone else, then you should consult with an attorney. Your lawyer can advise you of the legal remedies that you can pursue in your Florida case such as contesting your loved one’s will.

If you are considering creating a will, you may be unsure of where to start. It is paramount that wills are written clearly and that it is validated according to state laws. While wills cover many different types of assets, some types of assets do not need to be mentioned. The following are some types of assets that should not be mentioned in a will.

Joint tenancy property

If you jointly own property with another person, such as your spouse, you will not need to mention this property in your will. This is because the property will automatically be inherited in full by the surviving spouse.

Property in a living trust

If you have set up a living trust, all of the assets held within will be automatically transferred to the designated beneficiary. This means that the assets do not need to be mentioned in the will and that they will not go through probate.

Life insurance proceeds that have a beneficiary

Most life insurance plans have the opportunity for you to designate a beneficiary. Therefore, if you designate a beneficiary, all proceeds will go to them automatically.

You must plan your will carefully and think about all assets that should and should not be included. Assets mentioned in a will need to go through the probate process, so you may also be interested in strategies to help avoid probate.

Many states’ laws including Florida’s are written to require the person drafting a will, the testator, to be at least 18-years-old. There is an exception to that rule though if the individual drafting the will is an emancipated minor. If they are, then Florida Statute §§732.501, et seq. allows that individual to lawfully draft their own will provided that they have the necessary witnesses present when doing so.

Oral, or nuncupative wills, and holographic, or handwritten ones, aren’t recognized in the state of Florida. It’s irrelevant if there are witnesses to what was written down or said out loud. Neither is valid here.

All wills must be signed by the testator and two attesting witnesses all in front of one another to be considered as valid here in Florida.

One of the worst things that can happen is for someone to take their time to document their final wishes only to not have them upheld because their will wasn’t executed per Florida law. This is often why disputes arise in Miami-Dade probate court. Family members challenge the validity of these documents. An attorney can help do everything necessary to make sure that this doesn’t happen to you and your loved ones after you’re gone.

However, creating a will is critical. You’ll be allowing others to know your wishes even when you can’t speak for yourself any longer. A will helps your heirs avoid conflicts and trouble, and lets you know that your possessions will go to the people who deserve them most.

Your will dictates who gets to keep your property

It’s fair to want to control your property. After all, you worked for it. Your will lets you continue having control after you pass away.

A will dictates who receives what. It allows you to determine your own heirs and beneficiaries and to provide them with the assets you want them to have most.

Your will also protects your children

Your will is also there to protect your children or anyone you’re a guardian of. You get to choose who can take over their care if you’re not able to provide for them in the future.

Most importantly, your will allows you to be in control. All too often, wills are thought of in a negative light, but the reality is that they are more like a guiding compass. You get to choose what happens with all the assets you have, and take steps to provide care for your dependents. Setting one up is simple, and it’s a necessary component of your estate plan. Our site has more on why you may want to start working on your will.

The process of abatement was created to help probate judges more effectively divide up an estate’s assets if their value had declined significantly between the time in which their will was written and they passed away. This process was intended to aid judges in determining how to better apportion assets among beneficiaries if this happened.

An abatement often occurs when a testator bequeaths more property than they have to distribute. This generally happens for one of three reasons.

It can happen if the testator’s spouse takes an elective share from the estate. This can cause there to be a reduction in assets that can be divided up among the remaining beneficiaries.

This can also happen if the expenses or taxes that the testator owed were so high that they decreased the value of the property that had been set aside for beneficiaries.

An abatement may also be necessary if the testator had a significantly higher net worth at the time that they drafted their will, but it declined significantly before their death.

It’s by following the abatement doctrine that judges know which gifts to reduce first. Most state laws require the probate court to first take away from residuary beneficiaries then to reduce general and specific ones. Judges in other jurisdictions are expected to prioritize testamentary intent when applying abatement rules.

Most individuals are told when they draft their wills to revisit them on occasion to make sure that they are reflective of their current financial state and their final wishes. Many testators don’t revisit them once they draft them though. An attorney in Miami can advise you how often you may want to update your Florida will so that your loved ones can receive everything that you wanted to leave behind for them when you’re gone.

You can do this, and it happens more than a lot of people realize. It’s not always because parents and their adult children disagree or have no relationship. Sometimes, a parent cuts out a well-off child because other siblings need the money more. It’s not malicious; they just want to provide for those who need it.

No matter why you do it, though, experts warn that you do want to be careful and think about it for a while before doing it. One important point that they make is that people’s lives and situations can change between when a will is written and when you pass away.

For instance, maybe you have a well-off child now, but what if they lose their job? What if they get sick and spend all of their money on medical care?

Or, perhaps you have no relationship with an estranged child. What if, a year or two before you pass away, the two of you reconnect? If you fail to update your will, you are still going to disinherit your child.

Again, though, you do have the option to do this if you’d like. Make sure you know exactly what legal steps it requires.

In one case that reached the Florida Supreme Court, a woman wrote her will on a pre-printed form, listing out her items of property and the details for her bank accounts. She left her assets to her sister and then her brother, if her sister predeceased her. Wills should, generally, contain a provision to include all assets that are not specifically mentioned elsewhere, called a residuary clause. This makes sure that any items that were not specifically named will still be distributed according to the person’s wishes. However, in this case, the woman’s form did not include a residuary clause, meaning that only the items specifically described were covered.

After she received an inheritance from her sister, she did not update the will. Without any clause to address it, it passed via intestacy to her nieces, despite her never naming them in the will. Her brother took legal action, but the lack of a residuary clause meant he could not recover the property.

While the woman may have meant to save money by using a pre-printed form, the case eventually led to costly litigation that stripped assets from the estate as well as unintended heirs inheriting property. An estate planning attorney may help people to avoid these pitfalls and create wills, trusts and other key documents.

Some assets, such as life insurance and retirement accounts, pass by beneficiary designation. It is important to ensure that these remain up-to-date. People may forget to update these even when reviewing the rest of the estate plan, and this can mean that assets pass to individuals despite an estranged relationship. It is also important that it is possible to locate the beneficiary designation and that a person’s intentions are made clear.

An example of the problems that can arise is a case that occurred in Pennsylvania in the case of a man who died in 2019. The man’s brother claims that he found a beneficiary designation form for the man’s Morgan Stanley account leaving the account to him. However, according to Morgan Stanley, there is no beneficiary designation on file. Without a beneficiary named, the asset is supposed to pass to his children, but his brother says his intention was to disinherit them. He has hired a handwriting expert.

An attorney might be able to assist a person in creating an estate plan that makes the person’s intentions clear. For example, wills can specify whether a family member is supposed to be disinherited rather than simply not leaving anything to the person, which could lead to arguments that the omission was simply an oversight. Communicating with family members about the estate plan and leaving copies of estate planning documents with an attorney may also reduce the likelihood of conflict.