Florida Last Will and Testament

A Florida last will and testament directs how a person’s assets are distributed after death and names a personal representative to manage the process. A valid Florida will must be in writing and signed by the testator before two witnesses, who then sign in the testator’s presence and each other’s. A will controls only probate assets: property in the testator’s own name with no beneficiary designation.

Every Florida adult needs a will, even someone who already has a living trust. A will catches any assets not held in the trust at death and names a guardian for minor children.

What Can a Florida Will Do?

A Florida will allows the testator to choose who receives specific property after death. The testator can leave particular assets to named people, divide the estate by percentage, make charitable gifts, or combine all three. Florida law imposes few restrictions on how a person directs their property. The most familiar restriction is the surviving spouse’s elective share: 30% of the elective estate under § 732.2065, regardless of what the will says.

A will names the personal representative who administers the estate. Most other states call this office the executor. The personal representative gathers assets, pays debts and taxes, and distributes property to beneficiaries. If the will does not name one, the probate court appoints someone.

A will can name a guardian for minor children, and the court must consider that nomination when the child is a beneficiary of the will. Florida also lets both parents sign a separate preneed guardian declaration and file it with the clerk under § 744.3046. That declaration carries more weight: when it is produced, the named guardian is presumed entitled to serve and takes over immediately on the death of the last surviving parent. Parents of minor children should sign both. Without either document, the court decides on its own.

A will can also create testamentary trusts that take effect at death. A testamentary trust can hold assets for minor children until they reach a specified age, or provide for a spouse under conditions the testator sets. It can also protect a beneficiary’s inheritance from that beneficiary’s creditors, though it does nothing for the testator’s own creditors. The trust is written inside the will and comes into existence only after death, once probate opens.

What a Florida Will Cannot Do

A Florida will does not avoid probate. Every asset passing through a will must go through probate, which in Florida typically takes six months to two years. Florida law sets fee schedules for the attorney and the personal representative, presumed reasonable and scaled to the estate’s value. On a $500,000 probate estate, those schedules reach approximately $15,000 for the attorney and another $15,000 for the personal representative.

Florida allows a shorter form of probate, summary administration, under § 735.201 when the estate subject to administration, less exempt property, does not exceed $150,000, or when the decedent has been dead more than two years. Summary administration takes weeks rather than months, and no statutory commission applies. An estate that qualifies never reaches the fee schedules that apply to formal administration.

Section 733.710 supplies the reason: May v. Illinois National (Fla. 2000) held that the statute extinguishes any claim against the estate not filed within two years of death, and no court can extend that deadline.

A will does not control assets with beneficiary designations. Life insurance, retirement accounts, payable-on-death bank accounts, and transfer-on-death brokerage accounts pass directly to the named beneficiary regardless of what the will says. If the will leaves everything to the children but an old payable-on-death designation still names a friend, that friend takes the balance.

A divorce voids a beneficiary designation in favor of the former spouse. Under § 732.703, a designation naming a former spouse on life insurance, an annuity, an IRA, or a payable-on-death account is void at death, and the asset passes as if the former spouse had died first. That rule does not reach employer plans governed by federal law, so a 401(k) still pays the named ex-spouse.

A will does not control jointly held property. Assets held as joint tenants with right of survivorship or as tenants by the entirety pass automatically to the surviving co-owner. The will has no effect on these assets.

A will does not provide incapacity planning. A will only takes effect at death. If the testator becomes incapacitated, the will provides no mechanism for someone to step in. Incapacity planning requires a durable power of attorney, a health care surrogate designation, and ideally a living trust, all of which are prepared alongside the will in a Florida estate plan.

A will cannot freely give away the homestead. The Florida Constitution bars any devise of the home when the owner is survived by a minor child, and allows a devise to the surviving spouse only when there is no minor child.

A will does not protect assets from creditors during the testator’s lifetime. Most property passing through probate is exposed to creditor claims during administration. Homestead property is the exception: it reaches the surviving spouse or the heirs free of the decedent’s debts, and the exempt property listed in § 732.402 is beyond estate claims as well. A will can forfeit that homestead protection by directing the personal representative to sell the house and divide the proceeds.

Florida Will Requirements

Florida Statute § 732.502 sets out strict requirements for a valid will. The testator must be of sound mind and either 18 or an emancipated minor. The will must be in writing, whether typed or printed. The testator must sign at the end, or direct another person to sign on the testator’s behalf while the testator is present. The two witnesses must then sign in front of the testator and in front of each other.

Everyone signing in one room, in sequence, is the safest execution. Florida also accepts a testator who signed earlier and then tells both witnesses that the signature is the testator’s, after which they sign. An electronic will can be witnessed over audio-video through an online notary under § 732.522.

Florida does not require any particular form, specific language, or standardized template. A will that uses plain language is as valid as one filled with legal terminology, so long as the signing rules are followed exactly.

A witness can be any competent adult, including a relative or someone named in the will. However, naming a beneficiary as a witness can invite challenges based on undue influence, so the better practice is to use disinterested witnesses.

Simple Florida Will Form

The sample below is a standalone Florida will for a testator who has no living trust. It names a personal representative and leaves the residuary estate outright to named beneficiaries, with bracketed alternatives for marital status, children, specific bequests, and a guardian for minor children.

Does a Florida Will Need to Be Notarized?

A Florida will is legally valid without notarization. The two-witness requirement is what makes the will enforceable. However, a self-proving affidavit eliminates the need for witnesses to testify in court when the will enters probate. The affidavit is a sworn statement signed by the testator and both witnesses before a notary, attached to the will at execution.

Nearly all attorney-prepared Florida wills include the affidavit. A will without one is still valid, but proving it in probate means finding the witnesses and having them confirm the signing. That search stalls the estate when a witness has moved away or died.

Florida Self-Proving Affidavit Form

Florida’s self-proving affidavit is set out in full in the state probate code, and the download below follows the statutory form, with its fill-in blanks preserved. The testator and both witnesses sign before a notary or another officer authorized to administer oaths, either at the will signing or at any later date. Signing the affidavit later is how an older will without one gets fixed. The current form includes checkboxes recording whether each person signed in the notary’s physical presence or through online notarization.

A will that is not self-proved needs the sworn oath of an attesting witness, given to a circuit judge, a court-appointed commissioner, or the clerk, before the court admits it to probate. When neither witness can be found, or their testimony cannot be obtained within a reasonable time, § 733.201 lets the court accept the oath of the personal representative named in the will instead. A self-proved will skips the oath entirely and can be admitted without further proof.

A self-proving affidavit does not cure a defective execution. The will itself must still meet the § 732.502 execution requirements: the testator signs at the end, and both witnesses sign in the testator’s presence and each other’s. A will made self-proved under another state’s law, or under an earlier version of Florida law, is treated as self-proved in Florida.

Are Holographic Wills Valid in Florida?

Florida does not recognize holographic wills, meaning entirely handwritten and unwitnessed documents. A handwritten statement of last wishes, even if clearly expressing the testator’s intent, has no legal effect in Florida. If a person dies with only a holographic will, Florida treats them as having died without a will at all.

A holographic will stays invalid in Florida even when the state where it was signed accepts it. Florida recognizes an out-of-state will only when it is not holographic, and Florida courts have refused probate to a handwritten, unwitnessed will that had already been admitted in the state where it was written. A handwritten document can still be a valid Florida will as long as the testator signs it at the end and two witnesses sign in the testator’s presence.

Can You Write Your Own Will in Florida?

Florida law does not require an attorney to draft a will. A person can write their own will from scratch, with software, or with an online template, and it is valid if it meets the execution requirements. The formalities are not relaxed because the testator chose to draft the will without professional help.

The common failures in a self-drafted will are the signing and the substance. Witnesses sign outside the testator’s presence, the will has no self-proving affidavit, or the distribution language is ambiguous enough to start a fight among the beneficiaries. An attorney who supervises the signing can also later testify about the testator’s mental capacity if the will is challenged.

Tangible Personal Property Lists

Florida Statute § 732.515 allows a will to reference a separate written list directing how specific tangible personal property is distributed: jewelry, furniture, artwork, vehicles. The list does not need to be part of the will itself and does not require witnesses or notarization. It can be created before or after the will is signed and amended at any time.

The will must reference the list, and the testator must sign the list itself. The list must describe the items and the recipients with reasonable certainty, and it reaches only tangible personal property that the will does not already give to a named beneficiary. It cannot cover property used in a trade or business. A signed list lets a testator change personal property gifts without executing a new will or codicil.

Revoking or Changing a Florida Will

A Florida will can be revoked at any time. The testator can execute a new will that expressly revokes all prior wills, or physically destroy the original with the intent to revoke it. The testator can also direct someone else to destroy the will while the testator is present.

Writing “void” across a will with the intent to revoke it does revoke the entire document, which is rarely what the testator wants. Crossing out one gift does nothing: a physical act revokes a Florida will in full or not at all, and the marked-up page then invites a fight over what the testator meant. Changes belong in a new will.

A codicil is a formal amendment to an existing will. It must be signed with the same formalities as the original: the testator signs before two witnesses, who then sign while the testator and the other witness watch. Codicils are rarely used today because executing an entirely new will is simpler and avoids the confusion of reading multiple documents together.

Divorce rewrites a will without the testator signing anything. Under § 732.507, every provision that affects the spouse becomes void when the marriage is dissolved, and the will is read as though the former spouse had died that day. Marrying again or having another child does not revoke the will, but the new spouse or child can claim an intestate share as a pretermitted spouse or child.

Who Can Be a Personal Representative in Florida?

A non-resident qualifies as personal representative only through a family connection to the decedent. That covers a spouse, and anyone in the direct line: a parent, child, grandparent, or grandchild. It also covers a brother, sister, uncle, aunt, nephew, or niece, and the descendants of any of them, which is how a first cousin qualifies.

An adopted child or adoptive parent qualifies, and so does the spouse of anyone in that group. A friend or business associate who lives outside Florida cannot be appointed, even if the will names them.

The personal representative must also be at least 18, mentally competent, and not a convicted felon whose civil rights have not been restored. Florida law disqualifies anyone convicted anywhere of abuse, neglect, or exploitation of an elderly person or a disabled adult, and anyone physically unable to do the work.

A bank or trust company authorized to do business in Florida can be appointed as well. The court must formally appoint the personal representative after death before they have any authority to act. The nomination in the will alone does not grant power.

Contesting a Will in Florida

A Florida will can be challenged on the grounds of fraud, duress, undue influence, or lack of mental capacity at execution. Only interested parties have standing: beneficiaries named in the will, beneficiaries from a prior will, or heirs who would inherit under intestacy.

A will contest can only be filed after the testator’s death, and the deadline is short. Anyone served with the notice of administration then has three months to object to the will’s validity, and § 733.212(3) bars a later objection permanently. The court extends the three months only when the personal representative misstated the deadline.

A Florida will can contain a no-contest clause, and the clause does nothing. Florida Statute § 732.517 makes any provision that penalizes an interested person for contesting the will unenforceable, so a beneficiary can challenge the will without risking their inheritance. Florida is unusual here: many other states enforce these clauses.

In our experience, most will contests do not succeed. Proving fraud, duress, or undue influence requires substantial evidence. Courts generally uphold the testator’s right to distribute property however they choose, so long as the spouse’s elective share and the homestead rules are respected.

What Happens if a Florida Resident Dies Without a Will?

Florida Statutes §§ 732.102 and 732.103 determine inheritance when someone dies without a will. The default rules depend on family structure. If the decedent left no descendants, or all descendants on both sides are descendants of both spouses, the surviving spouse inherits the entire estate. If the decedent left descendants and either spouse had children from another relationship, the surviving spouse receives half and the decedent’s descendants receive the other half.

If the decedent is unmarried, the estate goes to the descendants per stirpes: each child takes an equal share, and the children of a child who died first divide that child’s share. If there are no descendants, the parents inherit. If no parents survive, siblings inherit. The estate passes to the state only if there are no heirs at all, which is rare.

The court also appoints a personal representative when there is no will, and the appointee may not be the person the decedent would have chosen.

The Pour-Over Will

A pour-over will is a type of will used alongside a living trust. It directs that any assets still in the testator’s individual name at death be transferred into the trust through probate. The trust terms then control distribution.

Even with a fully funded living trust, some assets commonly remain outside the trust at death. They may have been acquired after the trust was created, retitled by a bank during a routine account change, or overlooked during initial funding. The pour-over will catches these assets and routes them into the trust rather than letting them pass under Florida’s intestacy rules.

Will vs. Trust

A Florida will takes effect only at death. It goes through probate and becomes a public record. A living trust avoids probate, stays private, and provides management during incapacity. For Florida residents with assets beyond a homestead and beneficiary-designated accounts, a living trust is typically the more complete estate planning solution, with a pour-over will included.

If an estate consists primarily of homestead property and accounts with beneficiary designations, a simple will combined with a lady bird deed may accomplish the same goals at lower cost.

How Much Does a Florida Will Cost?

A simple will prepared by a Florida attorney typically costs between $1,000 and $2,000. The price usually includes a basic package: durable power of attorney, health care surrogate designation, and living will. A will prepared as part of a trust-based estate plan is included in the trust package, which typically ranges from $2,000 to $5,000.

Online document services and templates cost less but carry the risk of execution errors or provisions that do not comply with Florida law.

Where Does the Original Will Go After Death?

Whoever holds the original will must deposit it with the clerk of court within 10 days of learning that the testator has died. Florida Statute § 732.901 puts that duty on the custodian, which may be a family member, a bank, or the attorney who drafted the will. The duty runs whether or not anyone intends to open probate.

A custodian who ignores the deadline can be compelled to produce the will and charged with the costs and attorney’s fees of the proceeding that forces it. The same rule reaches the separate written list of tangible personal property, which must be deposited along with the will.