Wills

St. Johns County Wills Lawyer

At the Law Office of Shorstein & Lee, our experienced St. Johns County wills lawyer is dedicated to helping individuals and families achieve peace of mind for the future. Whether you want to create a new will or update an existing one, our attorneys understand the unique considerations that come with protecting your loved ones in St. Johns County. We take the time to tailor every plan to your specific goals, ensuring that your wishes are clearly defined. From choosing beneficiaries to designating guardians for minor children, we focus on practical solutions that safeguard your interests. When it comes to drafting a will, our thorough approach can help prevent legal complications down the road and provide reassurance that your affairs are in order. Contact us today for a Consultation at (904) 829-3035, and discover how our legal team can guide you through every stage of the process with confidence.

Why to Make a Will 

Creating a will remains one of the most significant steps you can take to direct how your assets will be handled after you pass away. Under Florida law, if you die without a valid will, the state’s intestate succession rules decide who inherits your property. This standard hierarchy generally favors spouses, then children, and more distant relatives if no spouse or child survives you. While this system covers many typical family structures, it will not necessarily align with your personal preferences. For example, you may desire to leave assets to a friend, charity, or long-term but unmarried partner, none of which the intestacy framework accommodates. By executing a will, you ensure that you direct inheritance to whom or what you wish to benefit.

A will also allows you to name a guardian for any minor children, thereby providing guidance about who should care for them if both parents pass away or are otherwise unavailable. This opportunity to address guardianship in a will is significant, as it lets you designate someone you trust and who shares similar values regarding child-rearing and upbringing. Although a Florida court retains the ultimate authority to appoint a guardian, your nomination will be given substantial consideration. By being clear about your wishes in the will, you reduce the likelihood of conflict among relatives and help the court understand your rationale for choosing a particular individual.

In addition to naming a guardian, a will can specify advanced planning regarding your personal property, including how sentimental items or family heirlooms should be divided. Leaving these decisions to your survivors without guidance raises the risk of misunderstandings and disputes. A clearly drafted will helps prevent family conflicts and provides direction about your intentions, which can simplify and expedite the probate process. Further, a well-crafted will demonstrates care for your loved ones by eliminating guesswork and providing an orderly framework for distributing your estate.

If you have questions about making a will or tailoring estate plans to your needs, speaking with our wills lawyer in St. Johns County can help clarify your options and protect your intentions.

Naming Guardians for Minor Children in a Will 

Florida law allows a parent to nominate a guardian for minor children in a will. Once the will is admitted to probate, the court will generally honor this nomination if it is in the children’s best interests. Should both parents pass away or become unable to care for the minors, the court looks to the will for guidance. When considering whether to confirm your chosen guardian, the court may review:

• The named individual’s ability to care for the children’s physical and emotional needs.
• The relationship between the proposed guardian and the children.
• The willingness of the proposed guardian to serve in that capacity.
• Any competing nominations, such as if another family member petitions for guardianship.

It is wise to discuss your guardian choice with the person you plan to name before finalizing your will. If you have concerns about a surviving parent’s fitness or availability, you should address these matters candidly with an attorney and document any relevant considerations clearly. Although a court always retains discretion to act in the child’s best interests, thoughtful planning and a clear expression of your wishes in the will can be very persuasive and reduce uncertainty or conflict. Our St. Johns County wills attorney can help ensure your guardianship nominations are legally sound and reflect your wishes.

Requirements for a Valid Will 

Florida law imposes strict formalities to ensure that each will accurately reflects the testator’s (the person making the will) wishes. The testator must be at least 18 years old or an emancipated minor and have the mental capacity to grasp the nature and extent of their property, the effect of the document’s provisions, the people who will inherit, and how these elements work together in the estate plan. A “sound mind” in Florida generally requires that the Testator:

1. Understand the nature and extent of their property.
2. Recognize the relationships to the individuals who might inherit.
3. Generally understand the effects of signing the Will.

To be valid, the testator must sign the will at the end of the document in the presence of at least two witnesses. These witnesses must also sign in the presence of the testator and each other. Florida explicitly denies validity to unwitnessed handwritten wills. However, if a handwritten will complies with the witnessing and signing requirements, it may still qualify as valid.

After the will is signed, the testator and witnesses can complete a self-proving affidavit before a notary public. The affidavit affirms that everyone signed in each other’s presence, helping streamline probate by removing the need to locate witnesses years later. A self-proved will in Florida is presumed to be valid, reducing delays in finalizing the estate.

Florida also recognizes electronic wills when completed under statutory guidelines. These include specific rules for remote online notarization (RON), identity verification, and preserving an audio-video record of the signing. While electronic wills are permissible, they must follow every prescribed step meticulously or face the risk of being declared invalid.

Florida Homestead Rules 

Florida’s homestead laws serve to protect surviving spouses and minor children. A Florida homestead typically is your primary residence, and the law imposes limitations on how you can transfer or devise it if you have a surviving spouse or minor children at the time of your death. In general, if you have both a spouse and minor children, you cannot freely leave the homestead to someone else. Instead, Florida law generally grants a life estate to the surviving spouse, with the remainder interest passing to the children once the spouse passes away. Alternatively, the surviving spouse may choose to hold a 50% tenancy in common interest, while the children collectively receive the other 50%.

These rules override any contradictory elements in your will. If your will states you want to leave your house to someone other than your spouse or minor children, and homestead restrictions apply, your directive is typically unenforceable. Consequently, clarity about homestead restrictions is vital when drafting a will.

Example of Florida Homestead Distribution:

Suppose you own a home in Florida titled solely in your name. You are married and have two minor children. If your will tries to leave the home entirely to one of your siblings, that provision will likely fail due to Florida homestead protections. Upon your death, the law generally grants your spouse a life estate in the homestead, and your children hold a vested remainder interest. Your spouse can elect, instead, to hold a 50% undivided interest in the property with the children sharing the other 50%.

Surviving Spouse’s Elective Share 

Florida law provides a protective measure known as the elective share. If a will or other estate-planning documents leave less than 30% of the “elective estate” to the surviving spouse—and the spouse has not waived these rights—they can claim that share. The elective estate often includes not just probate assets but also certain non-probate assets, trusts, and other transfers in which the decedent had an interest. This rule ensures that spouses are not unfairly cut out of a significant portion of the estate unless they previously waived those rights in a valid prenuptial or postnuptial agreement.

When drafting a will, it is important to remember that attempts to disinherit a spouse may be ineffective if the spouse does not voluntarily agree to it. Coordinating with an attorney on these issues can help tailor an estate plan that both reflects your intentions and respects the statutory requirement to protect the surviving spouse.

Pretermitted Spouse and Child 

A “pretermitted spouse” is one who married the testator after the testator created a will. If the will does not specifically address or exclude that spouse, Florida law grants the spouse a share comparable to what they would have received under the intestacy rules. An unintended omission in the will can lead to significant changes in the estate’s distribution. Similarly, a child born or adopted after the execution of the will is called a “pretermitted child.” If not expressly accounted for in the will, that child may also inherit as if there was no will, at least to the extent needed to prevent an accidental disinheritance.

To avoid these surprises, a testator may revise or create a new will after marriage or the birth or adoption of a child. Alternatively, a legally valid prenuptial or postnuptial agreement can waive a spouse’s right to an elective share or other property interests. Clear planning can prevent unexpected shifts in how the estate is divided. Consulting with a St. Johns County wills lawyer can help ensure these issues are proactively addressed.

The Impact of Divorce on a Will 

Florida statutes generally treat a divorced spouse as having predeceased the testator for purposes of inheritance. Any part of the will that leaves property to an ex-spouse—or grants them a fiduciary role, such as naming them personal representative—becomes void upon entry of the final judgment of divorce. The result is that the will is administered as if the ex-spouse no longer exists. If you divorce after creating a will, you may still wish to review and update your documents because the statutory provisions might not address every related situation (for example, you may have named your ex-spouse’s family members as beneficiaries). Ensuring your estate plan reflects your post-divorce wishes can help avoid confusion and unintended results.

Disinheritance in Florida 

It is generally permissible to disinherit individuals under Florida law, including adult children who would otherwise receive a share through intestacy. If you want to ensure they do not inherit, it is often wise to state your intent explicitly in the will to prevent arguments that their exclusion was an oversight.

However, disinheriting a spouse is significantly more complicated. Constitutional and statutory provisions such as homestead rights and the elective share frequently block efforts to leave a spouse with minimal notice of disinheritance. If you truly want to limit a spouse’s inheritance, a valid prenuptial or postnuptial agreement that waives the spouse’s statutory rights may be necessary. Even then, these agreements themselves must observe Florida’s formal requirements to be considered valid in court.

Why No-Contest Clauses Don’t Work in Florida 

A “no-contest clause” or “in terrorem clause” in a will typically purports to disinherit any beneficiary who contests the will’s validity or distribution scheme. In many jurisdictions, these provisions may be enforced under certain circumstances. In Florida, however, they are not enforceable. This means you cannot penalize someone by revoking their inheritance if they pursue a legitimate will contest. Because this approach does not deter claims, testators in Florida often focus on preparing a will that is unmistakably valid under state law to avoid successful challenges.

Non-Probate Assets and Digital Assets 

Many assets distribute outside of probate. Examples include life insurance and retirement accounts with named beneficiaries, and bank or brokerage accounts held with rights of survivorship. If you own property jointly with rights of survivorship, that property typically bypasses the terms of your will and passes automatically to the surviving co-owner upon your death.

Florida has also recognized the growing importance of digital assets, such as social media accounts, cryptocurrency, and online files. Access to these assets and instructions on their management can be included within your estate plan. While a will might not control every aspect of digital accounts—since each platform has its own policies—it is valuable to provide a secure way for your fiduciary to retrieve passwords and instructions. This forethought can prevent assets from becoming inaccessible or lost.

Qualifications for a Personal Representative in Florida 

Designating a personal representative (called an “executor” in some other states) remains a critical part of a Florida will. By law, a personal representative must be either a Florida resident or closely related to the testator. Qualifying relatives typically include spouses, parents, siblings, children, or other family members within a limited range of relationship by blood or marriage.

Florida generally excludes non-residents from serving unless they fit the statutory family relationship definition. If you name a friend or business partner who is not a resident of Florida and does not meet the familial criteria, that appointment is invalid. In such a situation, the court will require a qualified replacement. When selecting a personal representative, consider both this residency requirement and the person’s willingness and ability to handle estate administration tasks.

If you have questions regarding these qualifications, you may want to consult our wills lawyer in St. Johns County for guidance.

The Tangible Personal Property List 

Florida law permits the use of a separate writing, sometimes referred to as a tangible personal property list, to distribute personal items like jewelry, artwork, or collectibles. This list is valid only if the will references the possibility of such a writing. Once the will acknowledges it, you can prepare or update the list at any time without the same formalities needed for a codicil.

Common uses of this list include making detailed designations of who should receive sentimental items. For instance, you might specify that a family heirloom goes to one child and a particular painting to a friend. By having a flexible list, you can keep the will itself shorter and avoid having to re-execute legal documents each time you want to change how certain items are distributed.  This list cannot be used to leave cash, accounts, or real estate to anyone, only personal property.

Specific and Residuary Bequests 

When writing a will, you can name specific gifts or bequests and also provide a residuary clause. Specific bequests could be phrases such as “I leave $10,000 to my cousin,” or “I devise my sailboat to my nephew.” Once all specific bequests are satisfied, the remainder or “residue” of the estate is distributed according to the residuary clause.

Without a residuary clause, any property not specifically disposed of in the will (including property acquired after the will’s execution) might pass by intestate succession, potentially contradicting your intentions. A well-crafted residuary clause typically reads, “I give the remainder of my estate to [named beneficiaries] in equal shares.”

Example of How a Residuary Clause Prevents Partial Intestacy:

Imagine you create a will leaving your car to your niece and $5,000 to a close friend. Three years later, you acquire an additional parcel of real estate but never revise your will. If your will includes a residuary clause stating, “All the rest of my estate goes to my adult son,” that newly acquired property will pass to your son rather than falling under intestacy. Without a residuary clause, your son might need to seek a determination of intestate heirs for an asset you intended him to receive outright.

Changing a Will Via Codicil 

A codicil is a legal amendment to a previously executed will. It allows you to modify certain provisions—such as changing a beneficiary or naming a new personal representative—without drafting an entirely new will. However, a codicil must follow the same signing and witnessing formalities applicable to a regular will. This means you need at least two witnesses, and often, a self-proving affidavit can be added to simplify probate.

Frequent or multiple codicils can create confusion, potentially leading to inconsistent clauses or interpretation issues. If you need to make substantial changes, many find it cleaner to draft a new will and include a statement revoking all prior wills and codicils.

Revoking a Will 

Florida law prescribes specific methods for revoking a will. These include:

• Executing a new will or codicil that explicitly revokes prior wills.
• Creating a separate writing meeting the will’s execution requirements, stating your intent to revoke the old will.
• Physically destroying the original will (by tearing or burning, for example) with the intent to revoke, performed by the testator or by someone else at the testator’s direction and in the testator’s presence.

A verbal statement that you are revoking your will generally has no legal effect if you do not follow one of these formalities. If multiple wills surface after your death, a court will look for evidence of which is the latest validly executed document and whether earlier ones were revoked properly. Our St. Johns County wills attorney can advise you on the appropriate steps to ensure your will is revoked according to Florida law.

Avoiding Conflicts with Capacity and Undue Influence 

Florida courts require that you have the requisite testamentary capacity at the time you sign your will. This means you should comprehend the nature of your property, the intended recipients, and how the will’s provisions fit together. An opponent challenging your will might claim that you lacked capacity or were subject to undue influence—a scenario in which someone manipulates or coerces you into a particular estate plan against your free will.

Examples of possible undue influence include a beneficiary isolating you from other family members or pressuring you to sign documents when you are mentally or physically compromised. To reduce these risks, many people execute wills in neutral settings, relying on legal counsel to ensure they are acting voluntarily and with full understanding. Retaining records of relevant medical evaluations or having disinterested witnesses present can also help support the validity of the will if contested later.

Business Interests and Special Considerations 

A will does more than just dispose of personal property and real estate. If you own a business—whether it is a sole proprietorship, interests in a limited liability company (LLC), shares in an S-corporation, or membership in a partnership—you should evaluate how these ownership interests will be transferred after your death. Some business entities have operating agreements, buy-sell clauses, or membership provisions that dictate how shares or interests can be passed to heirs. For instance, certain LLC operating agreements may require unanimous consent of existing members before a transferee can become a voting member. Similarly, a partnership agreement might grant surviving partners the right to buy out the deceased partner’s interest.

In light of these complexities, a will provision that simply states “I leave all of my business interests to my daughter” may not be sufficient if the daughter is not an approved transferee under the business’s controlling documents. The best approach often involves reviewing each governing agreement and possibly creating a coordinated estate plan that includes buy-sell agreements or succession instructions. This way, the business can continue operating smoothly, and the intended beneficiaries can receive maximum value under clearly defined terms.

Federal Estate Tax Considerations 

Florida does not impose a separate state estate tax or inheritance tax, which is welcome news for many testators. However, for larger estates that exceed the federal estate tax exemption threshold set by federal law, federal estate taxes may still apply. The federal exemption amount can change periodically, and estates valued above that figure could be subject to tax on the portion exceeding the exemption.

Even when your estate is below the federal exemption threshold, being aware of the rules is beneficial should your estate value grow or if the exemption changes. Gifts made during life can also impact tax planning, especially if you give away large sums. While not every individual needs to worry about federal estate taxes, those with higher-value estates often explore strategies like irrevocable trusts or other structures to minimize potential tax exposure. Determining whether your estate might be affected typically involves evaluating your total assets, including real estate, investments, retirement accounts, life insurance proceeds payable to your estate, and business interests.

If you have questions about how federal estate tax laws might impact your plans, consulting with our wills attorney in St. Johns County can provide guidance tailored to your needs.

Reviewing Your Will After Major Life Events 

A will is not a static document. Because family and financial circumstances can change, you should periodically review your will to ensure it still aligns with your intentions. Certain major life events often trigger updates or complete rewrites, such as:

• Marriage or divorce.
• The birth or adoption of a child.
• The death of a primary or secondary beneficiary.
• A substantial change in financial status—like receiving a large inheritance or selling a major asset.
• Acquiring a new business venture or dissolving an existing enterprise.
• Moving to Florida from another jurisdiction.

Florida’s laws may differ from those of your previous residence. If you previously executed a valid will in another state, it may remain valid in Florida, but certain provisions—especially those regarding homestead property—could conflict with Florida’s unique rules. Thoroughly reviewing and, if needed, updating your documents ensures that your estate plan reflects your current wishes and Florida’s requirements.

Brief Comparison of Wills with Other Estate Planning Tools 

Preparing a will covers the distribution of assets after death but does not handle incapacity or healthcare decisions during life. Instruments such as a durable power of attorney can authorize someone (often called your “agent” or “attorney-in-fact”) to manage your finances and legal affairs during your lifetime. A health care surrogate designation or living will can address medical treatment preferences and end-of-life decisions, empowering someone to communicate with healthcare providers on your behalf.

Some people also use living trusts—often called revocable trusts—to hold title to assets during their lifetime. If structured properly, these trusts can bypass the probate process upon death, potentially expediting distribution to beneficiaries. However, creating a trust does not eliminate the usefulness of a will. You still generally need a “pour-over will” that captures any assets not placed into the trust during life. Understanding the distinct purposes and benefits of various estate planning components can help you build a cohesive approach that handles both lifetime and post-death considerations.

Practical Scenarios and Illustrative Examples 

Because Florida’s laws can be intricate, it helps to look at scenarios that illustrate how certain rules apply. A few additional examples include:

• Pretermitted Child Example:
  Suppose you have a will naming your two existing children as beneficiaries. Five years later, you adopt another child but make no updates to your will. Under Florida law, this new child could be considered pretermitted and might receive a share of the estate comparable to intestacy, unless the omission was clearly intentional or addressed in your prior estate planning documents.
• Blended Family Example:
  Imagine you have children from a previous marriage, and you have recently remarried. If you fail to create a prenuptial agreement or restructure your estate plan, your surviving spouse could claim an elective share, potentially disrupting the portion you intended to pass directly to your children. Additionally, homestead protections might restrict how you devise your residence, especially if you share minor children with your spouse.
• Digital Asset Example:
  You store a collection of valuable photographs or designs in the cloud, and no one else has the passwords. If your will and estate plan do not address your digital legacy or designate who can access them, those works might be unrecoverable or lost. By listing instructions and login credentials in a secure addendum or password manager, you facilitate a smoother transition.

If you have questions about how these scenarios might apply to your circumstances, our St. Johns County wills lawyer can provide guidance tailored to your needs.

Final Considerations About Drafting and Maintaining a Will 

Florida’s requirements regarding wills are designed to uphold the intent of the testator while protecting the rights of spouses and minor children. The formalities—two witnesses, proper signing, and optional self-proving affidavits—may appear daunting but serve to confirm the authenticity of your document. In addition, issues relating to homestead property, elective shares, or the intricacies of business interests necessitate careful thought.

Keeping your will current helps you meet life’s evolving demands. Some families revisit their estate plan every few years to confirm it still aligns with their goals. Others might update it only after major events like births, deaths, marriages, divorces, or substantial changes in assets. Regardless of how frequently you review, ensuring your will remains legally valid and accounts for relevant Florida statutes will help your loved ones avoid confusion and ensure your legacy proceeds according to your wishes.

Florida’s will-related doctrines can be complex, but a thorough, well-organized testamentary document can streamline the probate process and reduce the risk of expensive disputes. Through careful drafting, attention to statutory formalities, and consideration of the unique protections for spouses, minor children, and homestead property, your will can become a powerful tool that fulfills your intentions long after your lifetime.

Let Us Help You Pursue Your Goals

At the Law Office of Shorstein & Lee, our experienced St. Johns County wills lawyer understands that establishing a clear, legally valid testament can make a meaningful difference for you and your loved ones. Whether you want to protect minor children through guardianship appointments, designate beneficiaries for specific assets, or simply ensure that your personal property is distributed fairly, we strive to align legal tools with your unique needs. From explaining Florida’s signing requirements to helping you navigate homestead protections, we are ready to serve those seeking guidance. Take a proactive step toward peace of mind and let us help you pursue your goals. We welcome you to reach out for a Consultation at (904) 829-3035 to discuss your concerns, outline your wishes, and create a plan that lasts. Our dedicated approach ensures clarity and protection for every client. Secure your family’s future and move forward with confidence—call us today.