In Florida, a simple will is one whereby everything a person owns at death goes outright to their spouse. If the spouse dies before the will maker does, then everything goes to the children of the marriage in equal shares. This sounds straightforward and tempting if the priority is to keep costs down.
Sadly, so-called “simple” wills can end up being horror stories that cost families a lot of money and cause heartache. Before a will maker goes down this road, he must be absolutely sure that it’s the right solution.
What’s a Florida Simple Will?
A “simple” will is one that leaves everything to the will maker's surviving spouse or, if there is no surviving spouse, to his children in equal shares – if someone has two children, for example, they would each get 50 percent of the estate. In theory, it’s the simplest form of will to write. The will maker is not dividing up their estate, setting up complex trust arrangements or making gifts to charity, so he generally can accomplish his wishes with a single page of drafting.
What Are the Formalities for Making a Simple Will?
A simple will is still a will, and it must comply with the state of Florida’s requirements for will making, which means:
- The will maker, known as the testator, must be of sound mind and at least 18 years old.
- The will must be written, ideally typed. Oral wills are invalid in Florida.
- The testator's signature must be witnessed by two independent witnesses who must also sign the will.
Florida wills do not have to be notarized; however, to be valid, they must be approved by the probate court. The person nominated to administer the will, known as the executor, will file for probate when the testator dies. The process is rather like filing a lawsuit. The executor files a petition with the court and satisfies the court that the will is the testator's last will, meets state will-writing requirements and thus is valid.
Probating a Will
Making a simple will does not avoid probate – the only way to do this is by creating joint ownership of the will maker's assets or by setting up certain types of trusts. In other words, there's no guarantee that a simple will can "pass" probate. There may be significant delays and wrangling if someone challenges the will.
Who Should Write a Simple Will?
It’s tough to generalize and ideally, everyone would seek legal assistance before deciding on the right type of will for their situation. Looking at matters broadly, a simple will may be a good solution if the testator's financial circumstances and family construction are basic and simple: she has a small estate that’s unlikely to create massive tax liabilities down the road, for example, and she's leaving behind a spouse and/or children from her one and only marriage who are happy to inherit equally.
The more complex the situation, the more likely it is that problems may arise. Examples of possible complex situations a testator might have include:
- Children from a previous marriage.
- Step children.
- Children who do not talk to each other.
- A child with additional care needs.
- A spouse or children who are poor money managers.
- Minor children who require a legal guardian.
- Grandchildren for whom they wish to provide.
- A desire to make conditional gifts, for instance, a stipulation that a child should inherit only when he reaches 30 years of age.
In these cases, a simple will is unlikely to be all that is needed. A Florida will can be challenged on several grounds, and disputes often arise where someone is disinherited for no obvious reason. A good attorney can help document the basis for the testator's decisions and ensure that the will has a smooth passage through probate.
How to Write a Simple Will
When the testator is confident that a simple will is the best option, then writing it is as simple as downloading a Florida simple will template and plugging in the required information. This includes:
- The testator's name and address.
- A statement that this is the testator's last will and that it revokes all previous wills.
- The name of the executor who is elected to carry out the testator's wishes after death.
- A statement that gives the entire estate to the testator's spouse or, if the spouse is deceased, to her children in equal shares. A downloadable will template will already include the required language – the testator simply needs to write in the name of his spouse and children.
Testators should remember to sign the will in the presence of two independent witnesses and add a date. The witnesses must not be beneficiaries under the will or the document will not be valid.
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