Florida Estate Planning Attorney


Under Florida law, a Last Will & Testament can be changed, but this must be done correctly or the court will not uphold the validity of your will.  Never make changes by hand or simply cross out items.  The only way to properly make changes to an existing will is to execute a codicil to the will.  A codicil is an amendment that attaches to the will.  Your other option is to revoke the entire will and start over.   

According to the Florida Statutes, the revocation of a will can occur in three ways: revocation by writing, revocation by physical act, and revocation by operation of law.  So if you want to revoke a will, destroy it and any copies, or make a new one that revokes all earlier wills.  Then in your new will you can be sure to add your burial and funeral arrangements, include new family members, or makes any other changes you would like.  Wills are dated when executed, so there will be no question about which came first.  For further reference, see Florida Statutes Section 732.505 on revocation by writing.  If you live in Florida, contact a Florida estate planning attorney for help with preparing a codicil or a new will.

Probate Basics Under Florida Law

Probate is a title proceeding required to transfer assets.  The probate process is also known as an estate administration.  A deceased person’s probate estate consists of assets held by the person in his or her name alone, or held with another as a tenant in common, or payable to the deceased person’s estate upon death.  If there are no assets for probate, then there is  no probate estate and probate is “avoided.”  But, even though a probate may not be needed to transfer assets, it may be needed for other purposes. See Fla. Probate Rule 5.210.

A will does not avoid probate.  If a person left a will, it needs to be filed in the probate court with jurisdiction over the county in which the deceased person lived at the time of death.  In Florida, probate court is a division of the circuit court.  The will should be filed with the court within ten days. 

If a person dies without a will, a petition must be filed with the court to have the deceased person’s property distributed according to the state’s laws.  These proceedings are known as “intestacy proceedings.”  During the proceedings, the judge will appoint a personal representative to supervise the distribution of the property. 

A personal representative is an individual or entity that gathers all the probate assets and administers the estate according to statutory law, court direction, and/or instructions contained in the will.  The personal representative usually must hire an attorney to help in the estate administration.  The entire probate process can take anywhere from six months to a year, or longer for larger, complicated estates.

Additional Information/Resources:

Unmarried couples do not have the same legal rights as married couples. 

Unmarried couples must create essential documents to ensure that their partner is treated with the respect he or she deserves.

A growing number of heterosexual couples have chosen not to enter into marriage for their own personal reasons.  According to the U.S. Census Bureau, the number of unwed couples has jumped 72% to roughly 5.5 million households from 1990 through 2000.  Marriage-free couples feel they can have whole and complete relationships without marriage, but the government does not extend legal protections to unmarried couples.  The Florida intestacy laws do not grant any rights to a  share of an estate to a surviving unmarried partner. 

In addition, most states deny same-sex couples the right to marry.  Same-sex marriages or unions may not be recognized in other states.  This is an important consideration for a couple moving to another state that does not recognize same-sex unions.  The Florida Constitution, for instance, defines marriage as a union between a man and a woman, preventing same-sex couples from having the right to marry.  Florida will not recognize same-sex unions even if they are valid in other states. 

All unmarried couples suffer marital status discrimination, and must take action on their own to ensure that they have similar legal rights to married couples. 

Regardless of whether they are gay or straight, unmarried couples should specify their choices regarding medical and financial decisions by using the following documents:

  • Will
  • Living Will and Advanced Health Care Directive
  • Durable Power of Attorney
  • Domestic Partnership Agreement (similar to a pre- or post-nuptial agreement)
  • Have an attorney review how you hold title to your home and other real estate

Florida Probate courts will be the first to implement a new legislatively mandated electronic filing (e-filing) system.  The court clerks will begin implementing the e-filing system tomorrow, October 1st.  While the new system may not be up and running in every county starting on October 1st, a Probate e-filing Work Group will work out the complexities of the new system.  Two Florida counties, Broward and Pasco, have already implemented electronic filing for probate issues.  The new system will save time, paper and money.  It will allow probate attorneys to use the same system to file in any county in the state.  A Florida Estate Planning and Probate Lawyer can assist you in filing probate in Florida.

The purpose of the initial consultation is for you, the client, to meet the attorney and share your thoughts, concerns, and needs with them.  The attorney will tell you what, if anything, can be done to address your concerns, and how much it will cost you.  The purpose is not to give the client definitive legal advice, as it may be impossible to fully assess the matter at the first meeting.  After or during the meeting, the client decides whether to hire or retain the attorney.  If the attorney chooses to handle your case, the attorney will give you a retainer agreement or contract for legal services that quotes the fee.

It is important to come to your meeting prepared.   I ask clients to bring their current will, if any, and tax returns for the last two years.  Being ready for the meeting also entails thinking about what your assets are and who you would like to give them to before going to the estate planning meeting.  Think about whether you have any beneficiaries with special considerations.  Maybe your child has special needs, or you have a diabetic cat.  You should also consider what information others will need if they are going to handle your family’s financial matters in your absence.  Tell the attorney exactly how your assets are held. 

Many attorneys will provide you with a form that will help you organize the information you need for the planning session, as we call it here.  I am providing a copy of the form my firm uses here: estate planning questionnaire.  After scheduling an office consultation, clients fill out the form and either mail it in before the meeting or bring it in with them.  Some clients are more comfortable providing the information requested in this form in person during our initial consultation and that is okay too.  Any information clients provide is confidential. 

An estate planning attorney licensed in your state will be able to help you create enforceable documents under current state law.  Do not hesitate to ask about fees up front or whether an attorney will be meeting with you.  At my firm, you will always meet with me, and I will personally customize estate planning tools for you.  I use value-based pricing and will charge a fixed, flat fee for most services.  Half of the fee will be payable in advance, with the other half due upon completion.  Please do not hesitate to contact me to schedule an estate planning consultation or a telephone consultation with me.  I look forward to hearing from you!

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