Use of a Separate Writing in Florida Estate Planning

Florida, like many states, has a convenient statutory provision when it comes to dealing with tangible personal property (items such as jewelry, furniture, keepsakes, etc.) through estate planning.

Section 732.515, Fla. Stat. provides:

A written statement or list referred to in the decedent's will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.

When writing a Will, attorneys often include a provision to implement this statute. The attorney will include what is often referred to as a "separate writing" provision. Such a provision might say: "I may leave a written statement or list disposing of certain items of my tangible personal property. Any such statement or list in existence at the time of my death shall be binding with respect to all items devised therein." With this language in the Will, the person executing the Will can create a list of specific items and the persons to whom those items will be given. Once a probate is opened and a Personal Representative (Executor) is appointed, the Personal Representative will follow the writing as it applies to the tangible personal property listed.

The separate writing does not have to be in any particular format. Theoretically, it could be written on a napkin or a piece of notebook paper so long as it has the requisite information and is signed by the person leaving the property. In our law practice, we stress that the separate writing must (1) identify the item to be received; (2) identify the person to receive the item; (3) the writing must be signed; and (4) the writing should be dated. Although we provide a simple form for clients to use in completing this separate writing, any writing which includes these four criteria will do.

There are several great advantages to using the separate writing. One is that it can be done anytime, before or after the Will is signed. A second benefit is that the writing can be changed, amended, etc. without having to involve an attorney. However, there are some potential disadvantages. One is that the separate writing can get misplaced or overlooked. In our practice, we encourage clients to keep this writing with their original estate documents. Another disadvantage is that clients sometimes forget that it is intended for tangible personal property. It does not apply to money or financial accounts, nor to real estate. So if a person lists their home on the separate writing, that won't fly. Similarly, if the person leaves "my Google stock" to someone, that too will fail.

When having your estate planning done, you should talk with your attorney about the best way t use the separate writing.

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