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Jacksonville Will Lawyer

A basic document in an estate plan is a last will and testament. An estate that is managed by a will still enters probate court, but it will follow the wishes of the deceased, rather than state inheritance laws. A will allows an individual to list the distribution of their assets, name beneficiaries, name guardians for children, and appoint an executor. Their wishes will be followed after their death, and their loved ones will be provided for.

When you create a will to outline the distribution of your estate, you have to make sure that it is legally enforceable and clearly states your intentions. Otherwise, you would go through the effort of listing your assets and wishes for nothing, and your estate will be governed by intestate law. One of the most effective ways to ensure that a will contains all the information it needs and is legally valid is by working with an estate planning attorney in Jacksonville.

The Law Office of Douglas A. Oberdorfer, P.A.: Helping You Draft and Review Your Will

At the Law Office of Douglas A. Oberdorfer, P.A., we have spent 20 years working in estate planning and probate law. We have worked for the communities surrounding Jacksonville, proudly serving families and individuals. This experience means that we are very familiar with the state and local requirements for legally valid wills and estate plans. Our firm has drafted and updated many wills to fit our clients’ needs.

We understand that everyone creating a will is going to have unique goals and estates, and we want to provide you with compassionate legal support while determining and serving your goals. You may want to draft a will, update an existing will, or begin a more comprehensive estate plan, with documents such as trusts or powers of attorney. Our attorneys want to help, whether your estate plan is complex or straightforward. We can help you be prepared and confident in the future.

What Is a Will, and What Does It Do?

A last will and testament is a legal document that provides instructions for your estate after you die. You can create a will at any time in your life as a legal adult, then continue to update it to reflect changes in your life or in your wishes. A will can:

  1. Outline how your estate, including all its assets, is distributed to your beneficiaries.
  2. Determine how outstanding debts are resolved.
  3. Name a guardian for any minor children you have.
  4. Name the individual, called the executor, who will be in charge of distributing these assets and overseeing the other legal and financial requirements of the estate.

The assets in your estate include all bank and financial accounts, investments, businesses, real property, real estate, and personal property that you own.

Your will is administered through the probate process, which inventories your estate, processes and resolves creditor claims, and distributes assets to your beneficiaries. By creating a legally valid will, you are ensuring that these assets pass to the individuals and organizations you wish to benefit from them, rather than following Florida intestate succession laws.

State Requirements for a Legally Valid Will

A will that is not properly created or that cannot be clearly interpreted will likely make probate last longer, increasing the costs involved. This uncertainty of an individual’s final wishes will increase the likelihood that interested parties contest the will.

The requirements for an individual in Florida to create a will are:

  1. You must be at least 18 years of age or an emancipated minor.
  2. You have the mental and legal competency to understand the meaning of creating and signing a will.

The state requirements for a legally valid and enforceable will are:

  1. It is signed by the testator, or the creator of the will, at the end of the will.
  2. There are two witnesses present at the signing, who are of sound mind and, ideally, not beneficiaries or potential heirs.
  3. Both witnesses sign the will in the presence of the testator and each other.

Florida does not recognize holographic or oral wills. Beyond these two exceptions, any will made in another state by a non-Florida resident is considered valid in Florida if it is valid according to the other state’s laws. A handwritten will that complies with the other requirements of a legally valid will is not considered holographic under state law.

An attorney can help ensure that a will meets the state’s requirements to be valid. They can also determine if additional steps are necessary to validate a will and protect it from contests, such as through a self-proving affidavit.

It’s important to frequently review and update a will. This is both to ensure that it meets the legal requirements for a valid will and to update the will to reflect any changes in your life or in your wishes. It’s recommended that you review and update a will every few years and after any large life changes, such as marriage, divorce, or expanding a family.

Will Contests in Jacksonville

In Florida, will contests can be made during the probate process. They can be made by individuals who are beneficiaries in the current will, beneficiaries in a previous version of the will, or those who would benefit from the estate under intestate succession laws. A will could be contested for one of the following reasons:

  1. Invalid Will: If the will is not legally valid under state requirements, it will not be upheld in probate court. This may include being improperly signed or being created by someone who does not meet the requirements to create a will.
  2. Undue Influence: If a third party influenced the testator for their own personal gain, this is reason to consider that version of the will invalid. The third party may have directly benefited from the will, or they may have influenced the testator to benefit or disinherit another beneficiary. This third party must have had some confidential influence over the testator.
  3. Fraud or Forgery: There are several ways for a will to be invalidated due to fraud or forgery. The testator may have believed that they were signing a different document, or the will may have been misrepresented to the testator. The will and signature may also have been forged entirely.
  4. Coercion or Duress: A will is invalidated if the testator was persuaded or forced to sign it under threat.
  5. Lack of Testamentary Capacity: To create a will, the testator must be of sound mind. To have the capacity to create a will, the individual must have a complete understanding of their assets, debts, relationships with heirs and beneficiaries, the effect of creating a will, and the meaning of creating and signing a legal document.

If a will is contested during probate and found invalid, the court will use a prior version of the will instead. If there is no valid prior will, the estate will be divided by succession laws.

When you update your will frequently, a will contest may have less effect on your final wishes. Not only will there be a prior will, but the changes between versions may be minimal. Having a clear trail of past wills that shows any alterations that you made can also make it harder to prove certain factors in will contests, such as undue influence.

Do All Estates Go Through Probate?

Without a comprehensive estate plan, all estates enter probate court. There are simplified forms of probate court, including summary probate administration and disposition without administration. An estate must be under a certain value and have limited property to go through a shortened form of probate. All estates over $75,000 must go through the formal and complete probate administration, which can take 6 months to a year.

A will can speed up the probate process, but having only a will does not allow your estate to avoid probate. Probate is necessary to determine if a will is valid and to follow your wishes. Your will is a public document and, without additional documents, the assets in your estate must be inventoried by the court. To avoid probate, you must create and use living trusts and other types of trusts. Your assets are then under the care of a legal entity when you die, rather than passing into state jurisdiction. The assets in a trust can be passed directly to your beneficiaries.

How Can an Estate Planning Attorney Help Me?

Although you aren’t required to have an attorney review or draft any will that you create, it does make matters easier and helps you feel confident that your wishes will be followed. An attorney can address concerns specific to your estate, your family, your beneficiaries, and other unique needs.

If your will isn’t valid under state law, or is successfully contested, your will is thrown out. Your estate will not be distributed according to your most recent wishes, or the distribution may not reflect your wishes at all. Creating a will yourself increases the odds that your will is invalidated. An attorney can help you prevent this.

An estate planning attorney can help you create a strong, clear, and legally enforceable will. They can also help limit the success of will contests. Your attorney can also give you knowledgeable legal advice regarding other estate planning documents so that you can make an informed decision about what to include in your estate plan.

What Is Florida Intestate Law?

Without a will, your estate will enter probate court and be distributed according to intestate succession laws. Frequently, this distribution is not how you wish your assets to be distributed, and a lack of a will can make the probate process even longer and more expensive for your loved ones. If you die without a will, intestate succession laws follow these guidelines:

  1. If you have a spouse and no descendants, your spouse receives your entire estate.
  2. If you have descendants and no living spouse, your descendants inherit your entire estate.
  3. If you have a surviving spouse and descendants with that spouse, and the spouse has no descendants from a prior relationship, your spouse inherits the entire estate.
  4. If you have a spouse who has descendants from a prior relationship, and you have descendants together, your spouse inherits half the estate and your descendants inherit the other half
  5. If you have a spouse and descendants that are not from that spouse, your spouse and your descendants inherit half the estate each.

For a child or their children to be considered a descendant, they must be legally your children or grandchildren. This means biological and legal children through marriage, including posthumous biological children. It also includes adopted children and children who you established paternity for. Stepchildren and foster children who were not legally adopted cannot benefit from your estate under intestate laws. Grandchildren only receive inheritance through these laws if their parents are not alive to receive their rightful inheritance.

If you do not have a surviving spouse or descendants, intestate law will distribute your estate to relatives in this order:

  1. Parents, either split equally or to one surviving parent
  2. Siblings if there are no surviving parents
  3. Descendants of siblings
  4. Grandparents
  5. Aunts, uncles, and their descendants
  6. Any other blood relatives

If you die with no heirs under Florida intestate laws, your assets become property of the state.

Other Types of Wills

There are additional will documents other than a last will and testament. These include:

  • Living Will
    A living will, also called an advance directive, is another estate planning tool that lists your wishes for medical care while you are still alive. If you become incapacitated, incompetent, or otherwise unable to make decisions for yourself, a living will provides guidelines. A living will can also designate an individual as your healthcare surrogate. They will have the legal authority to make healthcare decisions on your behalf following those guidelines.
  • Pour-Over Will
    A pour-over will is a will used in tandem with a living trust. If you die without having transferred all your assets into trusts, those assets will still have to enter probate court. However, a pour-over will can direct those assets to be transferred to a trust. Although they will still pass through probate, the distribution of those assets is not handled by probate.

Preparing Your Estate for the Future

The Law Office of Douglas A. Oberdorfer, P.A., can listen to your needs and help you determine your goals for an estate plan in Jacksonville. Whether you need a simple will or a more complex estate plan, we can help you safeguard your assets and estate. Contact our team today.

Practice Areas

Probate & Estate
Elder Law


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