By Robert L. Jones, III, Esq.


A recent Google Consumer survey estimated that 63 percent of Americans do not have a last will and that 9 percent have a will that is out of date. Florida gives a person freedom to dispose of one’s own property at death through the execution of a valid will.  Some of the reasons for executing a valid Florida last will and testament include:


Distribution of A Florida Estate When Someone Dies Intestate

A person dies intestate if they do not have a valid last will. When someone dies intestate with a surviving spouse and either has no children or only children with the surviving spouse, the surviving spouse receives the entire estate. For some this result may be sufficient; for others this result may not work. After those scenarios, the Florida Probate Code provides for multiple other possibilities. If neither of the above scenarios exists, the intestate share of a surviving spouse is divided in half, and the other half of the estate is distributed to other persons according to Florida Statutes, Section 732.102.  If a Florida resident wants to be certain that their entire estate goes to his/her spouse, he/she needs to have a valid will.

Appoint a guardian:

Parents with minor children, or adult dependents, may (and should) use a will to appoint a guardian. According to Florida Statutes, Section 744.312, a Florida court shall consider any person designated as a guardian in a will.

Create a Testamentary Trust:

A will is capable of creating a trust.  This form of trust is known as a testamentary trust.  Testamentary trusts allow the testator to precisely direct how the trust assets will be used and to whom the assets will flow.  Ultimately, there is a lot more control when a testamentary trust is used than when a will lacks such a trust. Provisions in a will can delay distribution of a minor child’s share of the estate to an age deemed appropriate by the testator and give the personal representative (Florida’s terminology for an executor) or trustee direction on when the child’s share is to be distributed. However, testamentary trusts do not avoid probate.

Specific bequests:

A valid Florida will allows a testator to be certain that gifts to specific individuals or charitable organizations will be given. The testator is able to leave a legacy reflecting his values. As one Florida court stated: “[a] specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” See In Re Estate of Udell, 482 So.2d 458 (1986). An intestate estate does not allow for specific bequests to be made.

Reduces risk of fighting and potential litigation:

A valid Florida will may reduce the risk of dissension among the survivors. A clear direction from the testator can avoid family arguments over an inheritance. Without a will, this job is much more difficult and may complicate probate issues or lead to expensive probate litigation.  According to a 2014 Wall Street Journal article, approximately 70% of families lose their inherited wealth due to estate litigation rather than estate taxes. It is probate litigation that is more likely to cause a problem than estate taxes. In fact, according to a 2015 study, 99.8 percent of estates owe no estate tax at all. The 2015 Joint Committee on Taxation study means that only the estates of the wealthiest 0.2 percent of Americans — roughly 2 out of every 1,000 people who die — owe any estate tax.