LEONARD A. BARROW, JR.
© Law Office of Leonard A. Barrow, Jr.
The information contained in this web site is intended to convey general information about the law and other sources, which is subject to interpretation and change.
2418 Colonial Drive
Melbourne, FL 32901
Phone: (321) 725-0045
Fax: (321) 725-0078
What is a Will?
A Will is a written document which must meet certain formal requirements set forth by Florida probate law. A Will governs the disposition of a person's assets that are subject to probate administration. A Will has no legal effect until after the death of the person who made the Will. Only those assets that are subject to probate administration are controlled by a Will.
A Will can be used to name a guardian for any minor children, along with the acknowledgment of a "Separate Writing" (or "Written Statement"). Pursuant to Florida Law, a Will may refer to a Separate Writing or a list of items of tangible personal property to be disbursed to named individuals. The advantage of a Separate Writing is that it may be changed without having to formally amend the Will.
If someone has a Revocable Trust, it would be necessary for them to have a "Pour-Over Will" whereby any assets remaining in the probate estate are then "poured-over" into the Trust so that a uniform disposition can be made of all assets.
The main purpose of a Last Will and Testament is to reflect a person's desire as to best distribute their assets after death. To die without a valid Will, such would result in the assets being distributed as set forth by the Florida Statutes, which may well be a very different distribution scheme than what a deceased person would have wanted to happen.
What are some important considerations involving a Will?
• Naming a Personal Representative (and alternate Personal Representative) to be in charge of administering the estate.
• Deciding how assets are to be distributed upon death.
• Designating a preference for a Guardian of any minor children.
• Updating a Will as circumstances change in life by executing a Codicil to a Will or by executing a completely new Last Will and Testament.
• Distribution of items of tangible personal property (such as personal effects) pursuant to a dated and signed Separate Writing designated and referred to in the Last Will and Testament.
What assets are not controlled by a Will?
• Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship” (JTWROS) instead pass to the surviving tenant.
• Financial assets such as bank accounts held jointly with rights of survivorship (JTWROS) or bank accounts titled as “Transfer On Death” (TOD) are not subject to the control of a Will.
• Assets that pass by means of a beneficiary designation, such as a life insurance policy, annuity or a retirement account such as an IRA or 401(k) are not controlled by a Will and thus not subject to probate.
• Any property owned by a husband and wife as “Tenants by the Entirety” is not a probate asset upon the death of the first spouse to die, but goes automatically to the surviving spouse.
• Assets previously funded (transferred) into a Trust would not be controlled by a Will, since the Trust assets would be controlled by the provisions of the Trust.
LAST WILL & TESTAMENT