Are there limitations on what you can do in a Will?

By Attorney Truman Scarborough

Anything can be written in a Will, including provisions that are contrary to the law.  The problems are encountered later in probate after the creator of the Will has passed. Some of the limitations on wills include:

1] A Will cannot distribute non-probate assets. If property is jointly owned with survivorship rights, regardless of what the Will states, it goes to the joint owner.  Likewise, if there are designated beneficiaries on an account, the property will go directly to the beneficiaries. 

2] Although designated in the Will, a non-Floridian who isn’t a relative cannot be appointed as Personal Representative (executor) to administer the probate estate. On the other hand, there are no restrictions on who can be designated as successor trustee to settle a trust.

3] A beneficiary cannot be penalized for challenging a Will. Some people want to include a provision that if a beneficiary challenges the Will he/she will lose everything he/she was to receive. This is called a “terrorem clause” because it is intended to terrorize the person not to challenge the will. Terrorem clauses are not enforceable under Florida law so we do not include them in our documents.

4] A Will cannot leave property to a deceased person. A dead person cannot inherit property. When a beneficiary is dead, the gift he/she is to receive lapses (goes back into the pot) unless protected under Florida’s anti-lapse statutes. When a specific gift e.g. $10,000 lapses, it becomes part of the residual estate. If the lapsed gift is part of the residual estate, it is divided among the remaining residual beneficiaries. If there are no living residual beneficiaries, the estate goes to those persons who would inherit under Florida Statutes if there was no Will.

Florida’s Probate Code has an anti-lapse provision. If the deceased beneficiary is a descendant of a grandparent of the person who created the Will, the inheritance will go to the deceased beneficiary’s lineal descendants (children, then grandchildren).

5] A Will cannot alter a surviving spouse’s rights to inherit under Florida Law. A new marriage automatically voids an existing Will. The new spouse will receive as a minimum the amount provided for a spouse under Florida Statutes when there is no Will. This is called “Intestate Succession”. If there are children from a prior marriage, the surviving spouse receives one-half of the probate estate.

Even when the estate plan is created after the marriage (unless there is a nuptial agreement) the surviving spouse has the legal right to:

  1. a life estate or one-half interest in the home (if just titled in the deceased spouse’s name);
  2. up to $20,000 in household furniture, appliances and furnishings, plus two vehicles; and,
  3. 30% of the rest of the estate, including probate assets, joint accounts with survivorship, payment on death (POD) accounts, transfer on death (TOD) accounts, and property in Revocable Trusts.

6] A Florida Will may not be able to transfer property in a foreign country. The reasons include:  1] There may be different requirements for a valid Will, 2] The foreign country’s laws may mandate that certain relatives inherit the property, 3] The process of transferring property at death may be substantially different. A separate Will in the foreign country may be required.

For further information you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267-4770. Truman Scarborough’s office is located at 239 Harrison Street, in Titusville