Florida Last Will and Testament: The Basics. Learn the ins and outs of Wills, including the important clauses, and the different types of Wills. Last Will and Testaments are an important part of Estate Planning. This presentation is brought to you by Gadiel A. Espinoza, LAW, a Miami Estate Planning Attorney.

1. Florida Last Will and
Testament: The Basics
By Gadiel A. Espinoza, LAW
Law Office of Gadiel A. Espinoza, PLLC
1414 NW 107th Ave., Ste. 304
Miami, FL 33172
305-814-428 3
Gadiel@GespinozaLawFirm.com
GespinozaLawFirm.com

2. Disclaimer:
Nothing in these presentations should be interpreted as legal advice. These presentations are intended to help a person to
understand the area of law to help ask the right questions with the attorney of their choice. Your time to act may be very
limited and this could substantially reduce your rights and options. YOU CAN NOT rely on anything contained here in. These
information are not intended to substitute for professional legal advice and does not create an attorney-client relationship.
You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.
You should contact a lawyer in your area immediately, to assist you in any of these matters.
Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, we are now required to advise
you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments
and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related
matters addressed herein.

3. Last Will & Testament
A Last Will & Testament is document that provides instructions on how your property will be distributed at
the time of your death. A will has many advantages. It allows you to dictate who gets your property at the
time of your death, instead of the courts deciding for you. In your will you may name a personal
representative (executor) who will be responsible for managing your estate. This person may be a family
member or a friend, or even a bank or trust company. Moreover, some of your property such as real estate
may be sold without the use of court proceedings, and gifts may be made to charities. You can even name
a guardian for your minor children in your will. There are many other useful things your will can do for you.

4. Execution Requirements
In Florida, the requirements of a will are as follows:
1. The testator (maker of will) must be at least 18 years old;
2. Have the mental capacity (sound mind) at the time of testator's signing;
3. Will must be in writing; and
4. Signed by two attesting witnesses, while in the presence of each other as well as the testator.
A will has many advantages. It allows you to dictate who gets your property at the time of your death, instead of
the courts deciding for you. In your will you may name a personal representative (executor) who will be
responsible for managing your estate. This person may be a family member or a friend, or even a bank or trust
company. Moreover, some of your property such as real estate may be sold without the use of court proceedings,
and gifts may be made to charities. You can even name a guardian for your minor children in your will. There are
many other useful things your will can do for you.

5. Different Types of Wills in Florida
First, read up on the legal requirements of a will in Florida. Now onto the different types of Wills for people
residing in Florida.
An Attested Will must be in writing and signed by the will creator (aka testator) and signed by two witnesses. In
Florida, the most common attested types are the following:
1. A Simple Will leaves everything to the spouse (or children) with the exception of a few bequests (aka gifts) to
named individuals.
2. A Complex Will is very detailed with many bequests, and may contain conditions, a testamentary trust, and a
guardianship designation, etc.
3. A Pour-Over Will states that property that is not already in a living trust will be placed in your trust at the time of
your death.

6. Mental Capacity
In Florida, the law requires anyone signing a Last Will and Testament to have the requisite mental capacity in
order for it to be legally binding. The individual signing the will must possess the following:
1) understand the nature of the testamentary act;
2) understand and recall the nature and situation of their property;
3) possess knowledge of the people who are the natural objects of their bounty; and
4) understand the manner in which the disposition of their property is to occur.
So, it may not be as simple as asking the person signing the will if they know today's date or their name. It's a little
more complicated than that. This issue is one of several reasons why litigation during probate is such a point of
contention. If a family member who is either going to receive very little or nothing from someone's will, they may
attempt to argue that the will is invalid because the testator did not have sufficient capacity to sign the will in the
first place. The effect is that the court could determine that the will is invalid, which would then make it as if the
person died without having a will. The laws of intestacy would then determine the distribution of the decedent's
assets. Still the court would have to rule on the issue of mental capacity, which is not an easy task.

7. Mental Capacity Con’t
This is why it's extremely important to have estate planning documents executed well before lack of mental
capacity is ever an issue. On many occasions I had family members call me asking to make a Last Will and
Testament for their loved ones, only to determine that they are in the late stages of dementia. At this point, it's too
late to sign any estate planning documents. The next step would be to petition the court to be appointed a
Guardian in order to sign legal documents on their behalf, except for a Last Will and Testament, which can only
be signed by the testator. Expect the Guardianship process to be costly and time consuming. So, don't wait to
execute your docs, as it's best to spend a little bit of money now, then to spend a lot more later.
Learn more about the basics of Last Will and Testaments and the different types of Florida Wills.

8. Things to Consider When Drafting a Will
There are many things to consider when drafting a will. I have provided a short list below as examples.
1. Personal Representative: A Personal Representative (aka Executor) is the person who you have chosen to be
responsible for administering the will. For example, the personal representative will distribute any and all assets to all
beneficiaries listed within the will. This is only one of many responsibilities this person is in charge of doing. This is why it's
very important to choose someone who you can trust.
2. Guardian: A Guardian is the person who you have chosen to be the legal guardian of any minor children that you leave
behind after your passing. Although it is ultimately up to the courts to appoint a guardian for your children, the courts will
take into consideration who you have selected. It is extremely important to choose someone who responsible enough to
care for your children. Maybe it's a relative or dear friend who you have known for awhile who shares the same values and
morals, and is will to take this responsibility.
3. Trustee: This is the person who will be responsible for handling the monies you have left behind for the benefit of trust's
beneficiaries. e.g., your children, grand children, etc. The monies can come from bank accounts, life insurance policies, and
stocks/bonds, etc. This person should be financially responsible. It should be someone that has their own financial affairs in
order, which can be demonstrated by the decisions they have made regarding their finances. It should be somewhat
evident.

9. Things to Consider When Drafting a Will Con’t
4. Disinheritance: Although this provision is optional, it can be used in the instance that you would like to make
sure a certain family member (or friend) does not receive anything from your estate. For example, even though
the will states who is to receive from your estate, it does not prevent someone from contesting the will or
contesting the right to receive assets from your estate. If you suspect that someone will be there ready to fight for
piece of your estate at the time of your passing because they think they're entitled to assets, you should consider
adding this provision along with their name, in order to make sure your beneficiaries, personal representative, and
the courts know that you don't want this person to receive anything.
5. Burial/Cremation: In this provision you will state if you want to be buried or cremated, and how it will be handled
and by whom. This includes any church services, cemetery location, whether or not you want a private funeral
service, and so much more.

10. Different Types of Wills in Florida Con’t
An Oral Will is not in writing but given orally to someone else. Oral Wills are not valid in Florida. Moreover, the
same goes for Video Wills, which is the same as an Oral Will, but recorded on video. Since the video lacks the
writing requirements (including the other necessary specifications) they are not valid in Florida, although a video
can accompany a properly executed will that can be used to assist the family.
A Military Will is created while in "actual military service", and depending on the circumstances of the service
member, Florida may allow their will to be less formal. In other words, service members may not have to meet the
will requirements of Florida, in order to accept their will as being validly executed.
A Holographic Will is handwritten and signed by the testator, but not by any witnesses. This will is invalid in
Florida.
An Out-of-State Will that is in writing and properly drafted under the jurisdiction of which it was executed will be
accepted in Florida.

11. Summary
A Last Will & Testament is a very important legal document that should be drafted after
careful consideration of all of the factors involved in your particular situation. It is advisable
that you consult with an attorney, preferably, an estate planning attorney.

12. For More Information Regarding Last Will &
Testaments, Contact:
Gadiel A. Espinoza, LAW
Law Office of Gadiel A. Espinoza, PLLC
1414 NW 107th Ave., Ste. 304
Miami, FL 33172
305-814-428 3
Gadiel@GespinozaLawFirm.com
GespinozaLawFirm.com