When deciding between a will or trust it is necessary to understand the differences between each, specifically how each varies for the specific state you reside in.
Statutory Authority.
Florida Probate Code (Title XLII; Fla. Stat. §§731.005, et. seq.).
Wills: Chapter 732 (Fla. Stat. §§732.501, et. seq.).
Florida Trust Code (Title XLII; Fla. Stat. §§736.0101, et. seq.).
Florida Will Requirements.
To be legally effective, a Florida will must be in writing, signed by the testator, and attested by two witnesses. Both witnesses must sign in the testator’s presence and in each other’s presence.
At the time a will is signed, the testator must be an adult (or an emancipated minor) and must be “of sound mind.”
In general, Florida courts have held that a testator is “of sound mind” if he or she understands what property is subject to the will, who will benefit from the bequests, and the overall implications of executing the document.
A party challenging a will has the burden of demonstrating that the testator was not of sound mind when the will was signed.
Notarized Affidavit
If a will includes a statutorily compliant notarized affidavit, the will is deemed “self-proving” in probate, and, in most cases, no additional evidence of its authenticity is necessary.
The affidavit must be signed under oath by the testator and both witnesses. The affidavit must also include the testator’s acknowledgement that, when signing, the testator intended the document to be a will.
Likewise, the witnesses must acknowledge within the affidavit that they witnessed the testator signing the will (or stating that he or she previously signed the will) and declaring that the document is in fact intended as a will.
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Memorandum of Personal Property
Before or after executing a will, a Florida testator may create a written list of tangible personal property for use as evidence of the testator’s intended disposition of all items included in the list.
Commonly called a memorandum of personal property, the list must be referenced in the will, signed by the testator, and describe the individual items and intended recipients with reasonable certainty.
As a general rule, Florida courts require strict compliance with the legal formalities required for wills. As a result, minor technical defects that might be overcome in some other jurisdictions are likely to render a Florida will invalid.
Amendment, Revision, and Revocation of Florida Wills.
A Florida will can be amended by execution of a codicil, which is a separate document that effectively acts as an addendum to an existing will.
Codicils must satisfy all prerequisites that apply to the creation of a will—that is, they must be in writing, signed by an adult testator of sound mind, and witnessed by two parties.
Florida’s Probate Code provides that a will is revoked if it is intentionally destroyed (e.g., by “burning, tearing, canceling, defacing, obliterating”) by the testator or someone else at the testator’s direction.
Electronic wills are revoked by “deleting, canceling, rendering unreadable, or obliterating the electronic will.”
Additionally, a will is revoked if the testator—observing all formalities required for creation of a will—executes a later will or codicil that expresses the testator’s intention to revoke the original will or includes provisions that are inconsistent with the original will. In the latter case, the original will is only voided with regard to the inconsistent provisions.
Holographic and Oral Wills in Florida.
Florida law does not recognize holographic wills (i.e., a will in the decedent’s handwriting) or nuncupative wills (i.e., “oral wills”). A will written out by hand and signed by the testator can be valid, but only if it is also witnessed by two disinterested parties.
Florida Trust Requirements.
For a trust to be effective under Florida law, the settlor (i.e., the person creating the trust) must actually intend to create the trust and must have sufficient mental capacity to create the trust.
A trust must also have a trustee with duties to perform.
And, the trust must have a definite beneficiary—subject to a few exceptions, such as charitable trusts and trusts for the care of animals.
The “definite beneficiary” requirement is satisfied if the beneficiary can be ascertained at the present or in the future or if the trustee is empowered to choose a beneficiary.
Under Florida’s Trust Code, the same individual cannot be both the sole trustee and sole beneficiary of a trust.
Trust Creation
A Florida trust is created when the owner of property declares that he or she is holding that property as trustee, or when the owner transfers the property to a third party to hold as trustee, or if the owner exercises a power of appointment in favor of a trustee.
A trust can serve just about any purpose, as long as the purpose is not unlawful, contrary to public policy, or impossible to achieve. To the extent a trust is created or amended as a result of fraud, duress, mistake, or undue influence, the trust is void—either wholly or in part.
Oral Trust
In general, a Florida trust does not have to be evidenced by a written instrument, and oral trusts can be valid under the Florida Trust Code. However, the terms of an oral trust must be established by clear and convincing evidence, and other statutes may necessitate a written instrument, depending on the trust’s purpose.
For example, trusts that involve interests in real estate must be made in writing, and trusts with “testamentary aspects” (i.e., provisions relating to disposition of property after death) must satisfy all formalities required for creation of wills.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations Concerning Florida Wills and Trusts.
Spousal Elective Share and Homestead Protections:
Under Florida’s Spousal Elective Share statute, a surviving spouse is guaranteed at least a 30% interest in a decedent spouse’s estate, including assets arranged to transfer outside probate.
And, under the homestead provisions in the Florida Constitution, a married testator cannot devise a qualifying “homestead” to anyone other than the testator’s surviving spouse.
If left unaddressed, either spousal protection can override a will or trust and prevent an estate plan from working properly. However, Florida law allows spouses to formally waive the elective share and homestead protections by executing a signed, written waiver attested by two witnesses.
Alternatively, spousal homestead inheritance rights (but not the right to the elective share) can be waived through “safe harbor” language included within the deed to the homestead. Spousal waivers can be of particular importance when either spouse has children from prior relationships.
Non-Probate Transfers:
Along with living trusts, Florida law recognizes several other methods of transferring assets outside probate.
POD (payable-on-death) and TOD (transfer-on-death) designations can be used to automatically transfer financial accounts, CDs, securities, and some other assets.
Florida does not recognize TOD designations within real estate deeds, though “Lady Bird Deeds” (a/k/a “enhanced life estate”) can be used in Florida to accomplish essentially the same objective.
Additionally, due to the “right of survivorship” inherent in joint tenancy and tenancy in the entireties, assets jointly owned in either of those two forms of co-ownership automatically become sole property of a surviving owner, with no need for probate.
Summary Administration:
Florida’s Probate Code allows for streamlined probate administration of estates under $75,000 in value. To apply for summary administration, an estate’s personal representative submits a petition signed by the surviving spouse (if applicable) and any beneficiaries.
If the petition is granted, the personal representative is authorized to pay creditor claims and to distribute estate assets to beneficiaries without going through the normal, longer administration process.
Income and Estate Taxes:
Florida is generally considered a favorable jurisdiction for estate planning in part because Florida has no state-level income or estate taxes. Federal income and estate taxes may still be owed, though.
Electronic Wills:
Beginning in 2020, Florida’s Probate Code began allowing “electronic wills” witnessed via online audio/video conference under a notary’s supervision.
The electronic wills statute includes multiple security provisions intended to avoid fraud and confirm a testator’s mental capacity, especially when vulnerable individuals are involved.
Records relating to electronic wills must be securely preserved by an individual or entity meeting all statutory requirements to serve as a “qualified custodian.”
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences.
Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
