What is a Last Will & Testament?

A Last Will & Testament, also sometimes called a “Will”, is a document that is designed to transfer someone's assets to their beneficiaries after death. The Last Will & Testament is a phrase that is used to refer to that one document.

The Will doesn't become final until your death. Before your death, nothing you write in the Will will go into effect (and thus you can amend or cancel it anytime prior to death). Upon your death, the person you name to be in charge of your estate, called the  personal representative or executor, will be the one responsible for locating your assets, ensuring they're distributed as you indicated in your Will, paying your outstanding bills, and preparing your final tax return, among other things.

Your Will determines how your assets will be distributed to your beneficiaries after any debts and bills are paid on your behalf from the estate. If you choose, you can also mention how your bodily remains are addressed. You can specify, for example, whether you'd like your body to be buried or cremated, and you can direct how your funeral ceremony is to be performed.

What is a Living Will?

While the term "Living Will" has the word "Will" in it, it actually has nothing to do with your Last Will & Testament. It is important to have both a Living Will and a Last Will & Testament in an estate plan, but the two documents do not have any impact on each other. In fact, it would make more sense if the Living Will was called something like "Declaration Regarding Life Support."

A Living Will is a type of Advance Directive. An Advance Directive is a document that explains your wishes should you need assistance during your lifetime (typically due to illness, injury, mental incapacity, old age, etc.). A Living Will, in particular, is a document that allows you to appoint someone to carry-out your decisions with regards to medical life support. It also allows that person to direct the doctors and hospital to discontinue life support (i.e. "pull the plug") if you are in a position where you cannot communicate your wishes, you're not getting better, and recovery chances are minimal at best in the opinion of your doctors.

Another very important Advance Directive is the Durable Power of Attorney. There are different types of Powers of Attorney that are beyond the scope of this article, but you can read more about them here.

Requirements for Writing and Filing a Last Will & Testament in Florida

Every state has different rules when it comes to drafting, executing, and filing a Last Will & Testament. Some states in the Northeast have a Registry of Wills, for example. If you live in one of those states, you'd create your Will and then file it at the courthouse while you are living.

In Florida, however, there is no place to file a Last Will & Testament before a person's death. According to Florida statute 732.901, the person in possession of the Will (the custodian of the Will)  must deposit (file) the Will with the clerk of court  after the testator's death. They'll also need to file a certified copy of the death certificate to prove the testator has passed.

There are positives and negatives of having a Will Registry. One negative is that it limits the testator's ability to create a "Deathbed Will," which is when a simple Will is created very shortly before the person's death. Since there is no Will Registry in Florida, someone who does not have a Will can create one when they are on their deathbed if they wish.

Note that it is not a good idea to plan on making a deathbed Will in lieu of having one prepared in advance of death. First, a sudden accident or severe medical event could cause death before this type of Will can even be discussed, drafted, and executed. 

Secondly, it's a bit more difficult to make a deathbed Will self-proved. In order to make a Will self-proved, so as to not require one or more witness affidavits after death, the testator needs to sign it in front of two subscribing witnesses, and a Notary Public.  They must all watch each other sign, and it must be done as part of a contemporaneous “ceremony”.  The notary will notarize all of the signatures (testator and witnesses).  A self-proved Will is preferable, and a non-self-proved Will is more likely to be disputed, particularly with respect to challenging the validity of the signatures contained on the Will.

Conclusion

If you currently do not have a Last Will & Testament and you have any assets and/or beneficiaries, it's wise to prepare a Will now, even if you expect that you have decades left to live. Remember that you can always change your Will as your circumstances change.

Sources

• http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.901.html

"The information provided herein is simply a brief overview of the Florida law on this particular matter. It should not be relied upon for legal purposes, as the facts and circumstances to any specific legal matter may vary substantially from the limited explanation and application of often complicated legal rules and principles that may be addressed herein, or applicable in your particular legal matter. You should only rely upon legal advice provided to you by a licensed attorney who has had an opportunity to fully evaluate your particular legal matter".