Elements of a Basic Will

You're going to want one of these.

DISCLAIMER: The following is legal information and NOT legal advice. Nothing in the article below should be construed to create an attorney-client relationship, and I strongly recommend that you see an attorney to at least have him or her look over your estate documents. Give Law Office of Kendra Jowers a call at (407) 706-3967 if we can help.

Some people prefer to create their own basic will at home rather than do it through an attorney. I (obviously) recommend against this, because you may include language or perform some act that inadvertently undermines your intent or even invalidates your will altogether. But if you’re determined to go the self-made route, I put together the following basic elements of a will that should be included (with commentary on why you need them). The following anticipates a Florida resident; will requirements vary from state to state. Most states' requirements will at least be similar to those below, however.

Please note that Florida has very strict requirements regarding the formalities of execution, in addition to the substantive elements that you probably want to include. The person making the will (the "testator" or "testatrix") must sign it at the end; it must be witnessed by two people under oath; the witnesses must sign in the presence of the testator and of each other, and the testator must sign in the presence of the two witnesses; and it must be notarized.

Although Florida law doesn't prohibit beneficiaries of the will from being the witnesses, I strongly discourage it. This gives people grounds to try to question the validity of your will after your death (e.g. by arguing that the witnesses, as beneficiaries, exerted undue pressure on you to sign).

I also strongly recommend that the testator initial each page and include the page number ("1 of 4," "2 of 4," etc.) near each initial. This prevents fraud after your death. You'd be surprised what people try to do, like slip an extra page into the will...

With that preamble out of the way, let's get started.

THE BASICS of a BASIC WILL - Outline

1. EXORDIUM
2. RESIDENCY & CITIZENSHIP
3. PERSONAL REPRESENTATIVE (aka "Executor")
4. POWERS OF THE PERSONAL REP
5. NAMES OF THE BENEFICIARIES
6. SEPARATE WRITING
7. SPECIAL DEVISES
8. RESIDUARY DEVISE
9. SURVIVAL REQUIREMENTS OF THE BENEFICIARIES
10. TESTIMONIUM
11. ATTESTATION
12. SELF PROOF

THE ELEMENTS EXPLAINED

1. EXORDIUM: The exordium is your declaration that the document you’re creating is a will. You’ll want to indicate that the document is intended to supersede any previous wills and codicils (“codicils” are formal amendments to a will). It makes it clear to your family and to the courts that you understood that what you were drafting was a will as opposed to some other kind of legal document (e.g., a power of attorney).

Example: “I declare this document to be my Last Will and Testament, and I revoke all of my former Wills and Codicils.”

2. RESIDENCY INFORMATION: State the country of your citizenship (this can have very important tax implications), the state of your domicile, and the county of your current residence. I also recommend that you direct your personal representative to file for probate in the county of your residence at the time of your death. This prevents family members from pulling any fast ones by trying to probate your will in a different state (which most people don’t even realize can be done). I just had a client whose sister probated their father's will in Indiana, despite that he was a resident of Florida. This wasn't challenged in time under Indiana law (within three months), so the will was probated there and the property in Florida, which must be handled down here in what's called an "ancillary" proceeding, must be distributed pursuant to Indiana rather than Florida law. Based on the Full Faith and Credit Clause of the US Constitution, Florida Courts will accept the ruling of the Indiana court as long as the family members were provided notice of the Indiana proceedings.

Sample: “I declare that I am a citizen of the United States of America and a resident of the State of Florida. My county of legal residence is Collier. If I am a domicile of Florida at the time of my death, I direct that the original administration of my estate shall be conducted in the county in which I was domiciled at the time of my death.”

3. PERSONAL REPRESENTATIVE: [Side note: The personal representative is also widely known as the “executor/executrix.”] Name the person, and an alternate (or two), whom you want to take your will through the probate process. Keep in mind that it is always easier if the personal representative is a resident of the state in which the probate will take place, and also keep in mind that it can be a very long process - more than a year. The person is very likely going to need to make investment decisions (as a fiduciary of your estate), so a person with a background or savvy in finances is very helpful, although not necessary. The personal representative in Florida cannot be a person who has been convicted of a felony. Although you can name two or more people to be your co-personal representatives, I strongly recommend against it. This leads to innumerable problems and personal clashes in most cases. Since Florida law requires that a "majority" of the co-personal representatives must agree on every substantial decision, a situation in which there are two personal reps who disagree on an issue can create an enormous headache and bring the proceedings to a screeching halt. Spare your family the antacid budget and choose only one personal rep.

Example: “I nominate Beatrice Potter as personal representative of my estate. If my designated personal representative fails to qualify or cannot or does not wish to serve, I nominate Juniper Berry as my alternative personal representative. I direct that my personal representative not be required to post bond for the faithful performance of his or her duties under this will and under the laws of the State of Florida, or in any other jurisdiction in which my fiduciaries may qualify.”**

**You can also state here whether you wish for your personal representative, if he or she is a beneficiary, to receive compensation from the estate as though this person weren’t a beneficiary. Florida law allows a PR to receive 3% of the estate value as compensation for her time and work. If the PR is already receiving a substantial portion of your estate, you may wish that she not receive additional compensation.

4. POWERS OF THE PR: Most of the powers of the PR are given in statute, so I always recommend including a short form version of the PR’s powers. However, certain estates require a special or additional notation as to the PR’s powers, as when you have a small business that the PR will need to continue during estate administration. Take note of that when you’re drafting the “Powers” section.

Example: “I grant to my personal representative the power to sell, assign, transfer, mortgage, acquire, or grant options to purchase and convey any security or property of my estate, real or personal, at public or private sale, and at a time and a price and upon terms and conditions, including on credit, as my personal representative may determine and see fit. I authorize my personal representative to open and maintain an account to purchase and sell securities, in cash or on margin, and to hold those securities in the name of a nominee. If there is no corporate personal representative serving, I grant the personal representative the authority to retain a professional investment advisor to whom the personal representative may delegate fiduciary determinations and responsibility as provided in Florida Statutes Section 518.112, and that investment advisor’s fees shall be paid as an expense of the estate regardless of whether investment functions were delegated to him or her.”

5. NAME THE BENEFICIARIES: This is pretty straightforward. Name all of the people whom you want to take under the will. You don’t put what each one is getting here; you just list their names. Include their home addresses and, for minor children, their dates of birth. This makes things much easier for the personal representative, who is required to list the addresses and dates of birth of minor children on the petition for administration.

Example: “The following people are named in this Will:

“My spouse, Philip Collins, who currently resides at 100 Stowmarket Dr., Goose Creek, FL 32312.

“My nephew, Lionel Richie, who currently resides at 8675309 Lane St., Funkytown, FL 32801….”

ETC.

6. SEPARATE WRITING: Florida and some other states allow you to keep a list of your tangible personal property and the people whom you wish to give it to. You can modify this list regularly without having to go through the rigorous formalities of amending/updating a will or codicil. State that you may keep such a list in this section and how you wish for it to be treated during your probate administration.

Example: “I may prepare a list from time to time, separate from this will, in order to dispose of my tangible personal property. If such a list is prepared, it will be signed and dated. It will clearly describe each item of property in order that it may be identified and shall identify the person whom I desire to receive the property. If no list is found within 30 days of the issuance of Letters of Administration, it shall be conclusively presumed that no such list was created or exists. The list takes precedence over contrary dispositions set forth in this Will. Each item devised on the list shall be considered a devise under this Will. The list shall be offered for probate in the same manner as this Will and shall be construed in accordance with the rules of construction applicable to Will devises.”

7. SPECIFIC, GENERAL, & DEMONSTRATIVE DEVISES: These are all the devises other than the residuary devise (which takes care of everything that isn’t specifically accounted for - all the “left over” items and money that you don’t name or account for in this section). The technical differences between specific, general, and demonstrative devises is a blog post of its own; suffice it to say, these three categories of devises include all the money and items that you are giving to a specific person, entity, or group/class of people. Here is also where you can run into serious trouble, because if your wording is incautious or ambiguous, your devise may fail (and revert to your residue or pass by intestacy) or you may create substantial tax implications that you did not intend. (Hint hint: hire a lawyer to review or create your will!)

Example: “I hereby give $5000 from my Bank of America account to Uncle Jimmy Schmidt and $2000 from the same account to my niece Jessica Tandy. I give all of my life insurance proceeds that do not state a named beneficiary to my dog sitter, Dandelion Jones.”***

***I use these examples just to give you a feel for what is possible, but there are infinite ways of giving things to people in a will. I also want to make clear that will devises can be bizarre; perhaps you have children, but you still want to give your life insurance to your dog sitter. That is okay as far as Florida courts are concerned, and they won’t invalidate your will (or specific provisions thereof) just because your distribution scheme is strange or unexpected. Wills are only invalidated for a narrow set of reasons, including (but not limited to) mental incapacity at the time of will formation, undue influence from a third party, improper formation or incomplete finalization of the will document, and duress imposed by a third party.

8. RESIDUARY DEVISE: As mentioned above, this is where you account for everything “left over” that isn’t specifically accounted for in the above section. ALWAYS HAVE A RESIDUARY CLAUSE IN YOUR WILL. Your estate may have assets that you didn’t anticipate at the time you created the will, or you may have inadvertently left something out (or one of your devises might fail for some reason). Keep this important bit of information in mind: the residual estate is the part of the estate from which things like estate debts and estate administration costs (e.g., the probate attorney) will first be paid. Also, come up with an alternate in case the person who you intend to get the residue doesn’t survive you.

Example: “I devise the residue of my estate to my spouse, Ludwig. If my spouse does not survive me, I alternatively leave the residue of my estate to my history professor, Frederick Douglass, who is someone who has done an amazing job and is getting recognized more and more.”

9. SURVIVAL PROVISIONS AND REQUIREMENTS: Sometimes you and your spouse (or your children, who are your primary beneficiaries because you are not married) die at the same time, as happens in car crashes. Or sometimes you are in a crash together and you clearly die first, but your spouse dies only an hour or two after you. These cases can make for weird situations when there is no survival clause; your entire estate might pass under your will to your spouse - for all of an hour - but then pass to her siblings (for example), whom you never intended to receive your entire estate. This is why you may need or want a survival clause. Here are some examples:

Example 1: “If there is not enough evidence to determine that my spouse and I died other than simultaneously, it shall be conclusively presumed for the purpose of this Will that [I died first/my spouse died first].”

Example 2: “If my spouse fails to survive me for a period of 60 days, s/he will be conclusively presumed to have predeceased me for the purpose of executing the provisions of this Will.”

10. TESTIMONIUM: This part isn’t required under Florida law, but it is a good idea to include it. It emphasizes and makes clear the declarations that you have made and your understanding of the implication of the document you are creating and signing.

Example: “I have declared to the signing witnesses that this is my Last Will and Testament. I initialed each page, then signed it in their presence in Magic Kingdom, Florida, on June 21, 2017.”

11. ATTESTATION: This, like the testimonium, is not required but is highly recommended to decrease the likelihood that your will will be challenged or voided due to failure to legally formalize it. It notes that the required witnesses did and saw what they are required to do and see under Florida law.

Example: “We witnesses were both present and together with the testrix, Mary Kay LeTurnip, on the day and year written in the previous section. We observed and heard the testator publish and declare this document as her Last Will and Testament, and we observed her sign and seal it. At her request and in her presence and in the presence of each other, we each signed this document as an attesting witness.”

_______________________________________________________________________________________________
Witness One Signature and Address
_______________________________________________________________________________________________
Witness Two  Signature and Address

12. SELF-PROOF AFFIDAVIT: Once again, this is not required but is highly advisable. It makes it clear to the court what your wishes were and prevents the personal representative from having to provide additional proof to the court when he or she submits your will for probate.

Example:

I, Wyatt Derp, declare to the officer taking my acknowledgment of this instrument and to the subscribing witnesses, that I signed this instrument as my Last Will and Testament.

___________________________________________________                                                                                                                                Wyatt Derp, Testator

We, Johnny Cash and Willie Nelson, have been sworn by the officer signing below and declare to him or her, on oath, that the testator declared the instrument to be the testator’s Last Will and Testament and signed it in our presence and that we each signed it as a witness in the presence of the testator and each other.

___________________________________________________                                                 Witness One  Signature

___________________________________________________                                                        Witness Two  Signature

PUTTING IT ALL TOGETHER (Sample Basic Will):

"I'm not sure about all this dyin' talk, girls..."

LAST WILL AND TESTAMENT OF BLANCHE DEVEREAUX

I, Blanche Devereaux, declare this document consisting of eight Articles to be my Last Will and Testament, and I revoke all of my former Wills and Codicils. I do not hereby revoke any prior separate writing.

Article I - Citizenship & Residency

I declare that I am a dual citizen of the United States of America and of the French Republic (République française) and am a resident of the State of Florida. My county of legal residence is Miami-Dade. If I am a domicile of Florida at the time of my death, I direct that the original administration of my estate shall be conducted in the county in which I was domiciled at the time of my death.

Article II - Personal Representative and Alternate

I nominate Sophia Petrillo as personal representative of my estate. If my designated personal representative fails to qualify or cannot or does not wish to serve, I nominate Stanley Zbornak as my alternative personal representative. I direct that my personal representative not be required to post bond for the faithful performance of his or her duties under this will and under the laws of the State of Florida, or in any other jurisdiction in which my fiduciaries may qualify.

My personal representative or alternative personal representative shall be entitled to receive reasonable compensation the same as any non-beneficiary (individual) personal representative.

Article III - Powers of the Personal Representative

I grant to my personal representative the power to sell, assign, transfer, mortgage, acquire, or grant options to purchase and convey any security or property of my estate, real or personal, at public or private sale, and at a time and a price and upon terms and conditions, including on credit, as my personal representative may determine and see fit. My personal representative shall not be required to rent any residence owned by me at death during the period of administration.

I authorize my personal representative to open and maintain an account to purchase and sell securities, in cash or on margin, and to hold those securities in the name of a nominee. If there is no corporate personal representative serving, I grant the personal representative the authority to retain a professional investment advisor to whom the personal representative may delegate fiduciary determinations and responsibility as provided in Florida Statutes Section 518.112, and that investment advisor’s fees shall be paid as an expense of the estate regardless of whether investment functions were delegated to him or her.

I grant my personal representative authority to continue to operate any business, whether incorporated or unincorporated, which is owned by me at my death, specifically including the power to invest additional estate funds in the business whether as capital investment or as operating funds, all without limitation as to time, and to convert a form of the business or venture into another business form including but not limited to to or from a corporate form.

I additionally grant to my personal representative every power granted to trustees under Part VII of Chapter 736 of the Florida Statutes.

Article IV - Beneficiaries Named
The following people are named in some capacity in this Will:

1. My brother,Clayton Devereaux, whose current address is 555 Big Texas Lane, Tyler, Texas, 75701.
2. My best friend, Rose Nylund, whose current address is 6151 Richmond Street, Miami, Florida 33144.
3. My other best friend, Dorothy Zbornak, whose current address is 6151 Richmond Street, Miami, Florida, 33144.
4. My other other best friend, Sophia Petrillo, whose current address is 6151 Richmond Street, Miami, Florida.

I intentionally omit my three children, Biff, Douglas, and Rebecca, as they have never made an appearance in my life.

Article V - Separate Writing

I may prepare a list from time to time, separate from this will, in order to dispose of my tangible personal property. If such a list is prepared, it will be signed and dated. It will clearly describe each item of property in order that it may be identified and shall identify the person whom I desire to receive the property. If no list is found within 30 days of the issuance of Letters of Administration, it shall be conclusively presumed that no such list was created or exists. The list takes precedence over contrary dispositions set forth in this Will. Each item devised on the list shall be considered a devise under this Will. The list shall be offered for probate in the same manner as this Will and shall be construed in accordance with the rules of construction applicable to Will devises.

Article VI - Special Devises

I hereby leave my home at 6151 Richmond Street, Miami, Florida 33144 to Dorothy Zbornak, Rose Nylund, and Sophia Petrillo, with an undivided one-third share of the interest therein going to each individual.

I hereby leave all monies in my Bank of American account to Stanley Zbornak.

Article VII - Residuary Devise

I devise the residue of my estate to my brother, Clayton Devereaux. If Clayton does not survive me, I alternatively leave the residue of my estate to Dorothy Zbornak, Rose Nylund, and Sophia Petrillo in equal shares, and if any shall not survive me, to their issue per stirpes.

Article VIII - Survival

Except as otherwise specifically provided in Article VI above, If any of my beneficiaries shall fail to survive me for a period of 30 days, s/he will be conclusively presumed to have predeceased me for the purpose of executing the provisions of this Will.

Testimonium

I have declared to the signing witnesses that this is my Last Will and Testament. I initialed each page, then signed it in their presence in Miami, Florida on June 21, 2017.

Attestation

We witnesses were both present and together with the testatrix, Blanche Devereaux, on the day and year written in the previous section. We observed and heard the testatrix publish and declare this document as her Last Will and Testament, and we observed her sign and seal it. At her request and in her presence and in the presence of each other, we each signed this document as attesting witnesses.

_______________________________________________________________________________________________
Witness One Signature and Address

_______________________________________________________________________________________________
Witness Two  Signature and Address

I, Blanche Devereaux, declare to the officer taking my acknowledgment of this instrument and to the subscribing witnesses that I signed this instrument as my Last Will and Testament.

____________________________________________     __________________________                  
Blanche Devereaux, Testatrix                                              Date

                                    

We, Witness One and Witness Two, have been sworn by the officer signing below and declare to the officer, on oath, that the testatrix declared the instrument to be her Last Will and Testament and signed it in our presence, and we further declare that we each signed it as witness in the presence of the testatrix and each other.

___________________________________________________                                                                                                                      Witness One  Signature

___________________________________________________                                                                                                                     Witness Two  Signature

Acknowledged and subscribed before me by the testatrix, Blanche Devereaux, who is personally known to me or who has produced a Florida driver’s license or other documentation described in Florida Statute §117.05(5)(b)2 as identification and sworn to and subscribed before me by the witness, Witness One, who is personally known to me or who has produced a Florida driver’s license or other documentation described in Florida Statute §117.05(5)(b)2 as identification and Witness Two, who is personally known to me or who has produced a Florida driver’s license or other documentation described in Florida Statute §117.05(5)(b)2 as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on June 21, 2017.

NOTARY SEAL
_________________________________________                                                                                                                                          Notary Signature

If you need assistance in creating or reviewing your basic will (or a more comprehensive, complex will, trust, or other estate document), please contact Law Office of Kendra Jowers at (407) 706-3967 or law@kendrajowers.com. We'll be happy to help you out.

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