Orlando Will & Trust Requirements
Wills and trusts are legal instruments that must be expertly drafted to ensure they meet all the strict drafting requirements of Florida law. A will or trust that does not meet basic requirements will not be admitted to probate or estate administration. If the documents are carelessly prepared, they may be subject to challenge or attack in court by heirs or beneficiaries who disagree over the terms of the will or trust. Don’t take chances that your wishes won’t be followed, and don’t live without the peace of mind a properly drafted estate plan can bring. Learn more about Florida will and trust requirements below, and contact a highly experienced and detailed Orlando estate planning lawyers at Gierach and Gierach, P.A. for help drafting or revising your Florida estate plan.
Florida will requirements
Florida’s statute of wills sets out the different elements which must be present to make a will valid under Florida law. First of all, the will must be in writing. This generally means that the will is typed or printed out, not that it must be handwritten. In fact, wills that are entirely handwritten are generally not accepted in Florida, although a handwritten will may be accepted so long as it meets all the other legal requirements for a valid will.
The will must be signed at the end by the testator, which is the legal term for the person making the will. The will must also be signed by at least two witnesses who either witnessed the testator’s signing of the will, the testator’s acknowledgement that he or she previously signed the will, or the testator’s acknowledgement that another person signed the testator’s name at the testator’s direction. Both witnesses must sign the will in the presence of the testator and in each other’s presence as well.
Anyone can execute a valid will so long as he or she is at least 18 years old or has been emancipated as a minor and who is of sound mind. Having a “sound mind” for these purposes basically means that the testator understands he or she is making a will, understands the extent of the estate, and understands that the will is disposing of estate property.
A will does not have to be notarized in order to be valid in Florida, but having the will notarized does have benefits. A notarized will is considered “self-proving,” which means it can be entered into probate without having to call the witnesses into court to testify that this is indeed the will they signed.
Elements of a valid trust
As with a will, in order for a trust to be valid, it must be in writing and created by a settlor or grantor (the person creating the trust) who is competent (18 years old or an emancipated minor and of sound mind). Also, the trust must be created for a proper, legitimate purpose. Other necessary elements include that the assets of the trust and beneficiaries be adequately defined or ascertainable. Also, in most cases one person cannot serve as both the sole trustee and the sole beneficiary of a trust.
The validity of Wills and Trusts may still be challenged
Even if they meet basic legal requirements, wills and trusts alike may still be challenged on the basis that they were the product of coercion, fraud, undue influence or mistake. The trustee or the estate’s personal representative (executor, administrator) can also be challenged for breaching their fiduciary duties to avoid conflicts of interest and self-dealing and to perform their duties competently or seek help (including legal help) as needed. Drafting wills and trusts appropriately can prevent successful will contests and other challenges, but not all probate litigation can be anticipated or avoided in every instance. Having an experienced probate attorney on your side from drafting to estate administration can help ensure a successful disposition of the estate.
Help is Available for Wills and Trusts in Orlando
For help drafting, revising or revoking a Florida will or trust, contact the Orlando estate planning attorneys at Gierach and Gierach, P.A. for sound advice and effective assistance.