After a person’s death, a Florida Last Will and Testament is filed with the court by a decedent’s Personal Representative, beginning the legal proceeding called “probate.” The Personal Representative compiles the estate’s assets, pays any outstanding debts and estate expenses, and legally transfers title to the decedent’s property to the individuals and entities named in the will.
Although a person in Florida may generally dispose of their assets in any manner they wish, there are a few exceptions. The Personal Representative must satisfy the decedent’s debts before distributing any property, which may cause specific bequests to fail for lack of assets. Further, a decedent cannot bequeath property that is not transferable on death, such as a lifetime annuity or their interest in a joint tenancy. Bequests also cannot be illegal or in violation of public policy.
Children and other extended family members have no legal right to inherit property if a valid Last Will and Testament excludes them. However, a surviving spouse may challenge a will that leaves them less than the “spousal share” mandated by Florida law. Although a spouse may not be unilaterally disinherited, the spouses can mutually agree to waive one or both spouses’ rights to their spousal share. This agreement must be in writing; it is usually done through a prenuptial agreement or antenuptial agreement.
Sometimes, a decedent has children who were born after they execute a Last Will and Testament that does not mention future children. If such a “pretermitted” child proves the omission was unintentional, they may be able to recover a share of the decedent’s estate as if there was no Last Will and Testament.
A Last Will and Testament may also be challenged on the grounds the decedent was not legally capable or of sound mind when the document was made, they were under duress, or the execution of the document violated the legal requirements. These challenges must be made during Probate. They may cause some or all of the Last Will and Testament to be invalidated and the decedent’s assets distributed as if it were never written.