Florida Estate Planning

The proof before a Judge Register or Surrogate; that a will offered to be recorded is the act of the person whose last will and testament it purports to be. Upon proof being so made and security being given when the laws of the state require such security, the officer grants to the executors or administrators the power to marshal assets and to administer and distribute decedent's estate.

^TOP  WILL or TESTAMENT

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The legal declaration of a man's intentions of what he wills to be performed after his death. The terms will and testament are synonymous, and they are used indifferently by common lawyers, or one for the other. There are five essential requisites to make a good will.

• The testator must be legally capable of making a will. Generally all persons who may make valid contracts can dispose of their property by will. This act requires a power of the mind freely to dispose of property. Infants, because of their tender age, have no capacity to make a will. Persons devoid of understanding cannot make a will.
• The testator at the time of making his will must have a serious intention to make such will. If a man therefore jestingly or boastingly and not seriously, writes or says that such a person shall have his goods or be his executor, this is no will.
• The mind of the testator in making his will must be free, and not moved by fear, fraud or flattery. In such cases the will is void or at least voidable.
• There must be a person to take, capable of taking; for to render a devise or bequest valid there must be a donee, one that shall have capacity to take the thing given, when it is to vest, or the gift shall be void.
• The will must be put in proper form., Wills are either written or nuncupative.

(1.) Written on paper or parchment; it may be in any language, and in any character, provided it can be read or understood.

(2.) It must be signed by the testator or some person authorized by him; but a sealing has been held to be a sufficient signing. And it is signed by the attesting witnesses. In some states three witnesses are required, who should sign the will as such at the request and in the presence of the testator and of each other. This formality should generally be pursued, as the testator may have lands in such states which would not pass without it.

(3.) It must be published, that is, the testator must do some act from which it can be concluded that he intended the instrument to operate as his will.

(4.) A will names an executor, who marshalls and distributes the property of the estate.

A nuncupative will or testament, is a verbal declaration by a testator of his will before a competent number of legal witnesses. Before the statute of frauds they were very common, but by that statute which has been substantially adopted in a number of the states, these wills were laid under many restrictions.

In New York nuncupative wills have been abolished, except made by a soldier while in actual military service, or by a mariner while at sea. It is a rule that the last will revokes all former wills. It follows then that a man cannot by any testamentary act impose upon himself the inability of making another inconsistent with and revoking the first will.

A will voluntarily and intentionally made by a competent testator, according to the form required by law, may be avoided, 1st. By revocation and 2d. By fraud.

Among the civilians they have two other kinds of wills, namely: the mystic, which is a will enveloped in a paper and sealed, and the witnesses attest that fact, the other is the holographic; which is wholly written by the testator himself.

Property given by a person called the donor or settlor, to a trustee, for the benefit of another person (the beneficiary or donee).

• Trust is property given to a trustee to manage for the benefit of a third person. Generally the beneficiary gets interest and dividends on the trust assets for a set number of years.
• An agreement under which one person transfers title to specific property to another who agrees to hold or manage it for the benefit of a third person.
• The trustee manages and administers the property, actual ownership is shared between the trustee and the beneficiary and all the profits go to the beneficiary.
• The word "fiduciary" can be used to describe the responsibilities of the trustee towards the beneficiary.
• A will is a form of trust but trusts can be formed during the lifetime of the settlor in which case it is called an inter vivos or living trust.
• An equitable right, title or interest in property, real or personal, distinct from its legal ownership; or it is a personal obligation for paying, delivering or performing anything, where the person trusting has no real right or security, for by, that act he confides altogether to the faithfulness of those intrusted. This is its most general meaning, and includes deposits, bailments, and the like. In its more technical sense, it may be defined to be an obligation upon a person, arising out of a confidence reposed in him, to apply property faithfully, and according to such confidence.

1. Express trusts are those which are created in express terms in the deed, writing or will. The terms to create an express trust will be sufficient, if it can be fairly collected upon the face of the instrument that a trust was intended. Express trusts are usually found in preliminary sealed agreements, such as marriage articles, or articles for the purchase of land; in formal conveyances, such as marriage settlements, terms for years, mortgages, assignments for the payment of debts, raising portions or other purposes; and in wills and testaments, when the bequests involve fiduciary interests for private benefit or public charity, they may even be created orally.

2. Implied trusts are those which without being expressed, are deducible from the nature of the transaction, as matters of intent; or which are superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties.

The most common form of an implied trust is where property or money is delivered by one person to another.

examples:

When land is purchased by one man in the name of another, and the former pays the consideration money, the land will in general be held by the grantee in Trust for the person who so paid the consideration money.

When real property is purchased out of partnership funds, and the title is taken in the name of one of the partners, he will hold it in trust for all the partners.

When a contract is made for the sale of land, in equity the vendor is immediately deemed a trustee for the vendee of the estate; and the vendee, a trustee for the vendor of the purchase money; and by this means there is an equitable conversion of the property.