FAQ ON FLORIDA WILLS

Most frequent questions and answers

Changing your will can be done in one of two ways. You can revoke your current will and write a new one. Or you can amend your existing will by creating a codicil. A codicil is a formal supplement to your will and must conform to the same requirements for executing a will (must be written and signed by you and your witnesses).

TIP: If you execute a codicil to your will, make sure that you store it with your will. If the changes in your codicil are extensive, you should consider revoking the old will and starting over with a new one. This will avoid any confusion when your will goes to probate and will insure that you don’t make any mistakes.

If you revoke your will, it is legally dead – as if you never created it. You can revoke your will by a later writing (e.g., a new will or codicil that is totally inconsistent with your previous will or that includes a statement that you intend to revoke your previous will) or by physically destroying it (burning, canceling, tearing, or obliterating it). If you physically destroy your will, make sure you destroy the entire will; otherwise you risk an ineffective revocation. For example, if you want to write “void” on your will, write it across the face of every page, not just the first page.

TIP: Make sure that your new will includes a statement indicating your intent to revoke the old will. It is usually sufficient to state something to effect that you -revoke all prior wills and codicils.’ This will protect your intentions in the event that you forgot to destroy any originals or copies of prior wills or codicils.

If you do not properly revoke your old will, it remains alive and it will go to probate along with your new will. In that event, the court will try to dispose of your estate pursuant to the terms of both wills, and if there is an inconsistency between the two, the terms of the most recent will take precedence. All the remaining provisions of the old will still have effect, provided they do not conflict with the new will!

EXAMPLE: Assume you have a will that, among other gifts, devises your car to your mother and your home to your sister. You later write a new will that devises the car to your father, but you don’t mention the home and you never revoke the old will. Both wills are valid and both will be probated. Because there is an inconsistency between the two wills with respect to who gets your car, the most recent will controls and it passes to your father. The home will pass to your sister under the first will even if you didn’t want her to receive it.

Tip: If your new will is completely inconsistent with the prior will, then you don’t need to worry about this happening – the prior will is considered to be revoked. This makes sense if you think about it ‘ the second will controls any inconsistencies between the two wills, so if the two wills are entirely inconsistent, then the second one controls, revoking the prior will! However, it’s best to err on side of caution and destroy any unwanted wills.

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Changing your will this way is called a “partial revocation by physical act,” and although it is permitted in some states, it’s not recommended. What if you have so many changes that you are left with a will with a lot of crossed-out provisions? How is the court to know whether you intended to revoke the entire will or just portions of it? And what if your new clauses are hard to read or understand? At a minimum, you should make the change by executing a codicil to the will. And if your changes are significant, then you would do your beneficiaries a favor by rewriting your will. It is more time-consuming but you ensure that there will be no problems when the will is probated.

No. Changing your will this way will be ineffective because it was not present when the will was executed. If you add anything new to the will, you must re-execute it for the new material to be valid. In other words, you and your witnesses must sign it again.

No. The 2000 will was revoked and remains revoked. You must take affirmative action if you want to revive its terms, and you have three options. First, you can create a new will that contains the same terms as the 2000 will. Second, you can properly re-execute the 2000 will (re-date it and have it signed by you and your witnesses). Third, you can execute a codicil that states your intent to revive the 2000 will. And be sure to completely revoke the 2005 will!

Yes. If you create a codicil to your will and then later revoke the codicil, the will is still valid and the clauses in the will that were changed by the codicil now take their original effect.

Standing alone, the will is invalid because without your signature it is not properly executed. However, if you properly executed your codicil (in writing and signed by you and two witnesses), then it validates your previously invalid will as of the date of the codicil. Therefore, your will is considered to be valid.

Dying without a will is also known as dying intestate. It means that you die without having executed a valid will.

Dying without a will results in  your belongings being distributed to your “heirs,” as defined by your state’s law. They are also distributed in shares pursuant to your state’s law. Basically, the state will decide who gets your property. They will do so without any regard as to your feelings toward family members, nor any special relationships you may have formed outside of your family. The law assumes, sometimes incorrectly, that you would have devised everything to your family. You have no control over the disposition of your property, so if you care about who owns your property, have a will prepared before you die. Also, if your will is invalid or if you don’t dispose of all of your property under your will, and you have no residuary clause, then the undisposed-of property will pass under intestacy.

TIP: If you want to disinherit a family member or next of kin, then you need to create a will and dispose of all of your property. It is the best way to make sure  your property does not go to someone you disfavor.

Florida Last Will and Estate Planning Documents