Florida Last Will and Testament

A last will and testament is a legal document that directs how your assets are distributed after your death and names a personal representative to manage the process. In Florida, a valid will must be in writing, signed by the testator (the person making the will), and signed by two witnesses in the testator’s presence. The will goes through probate, which is the court-supervised process of paying debts and distributing assets to beneficiaries.

A will is the most basic estate planning document. Every Florida adult should have one, even those who also have a living trust, because a will serves as a safety net for any assets not held in the trust at death.

What a Will Can Do

A will allows you to choose who receives your property after death. You can leave specific assets to specific people, divide your estate by percentage, make charitable gifts, or create any combination of these. Florida law imposes very few restrictions on how you direct your property. You can give what you want, to whom you want, in whatever manner you want, with one significant exception: a surviving spouse has a right to an elective share of 30% of the augmented estate under Florida Statute § 732.2065, regardless of what the will provides.

A will allows you to name a personal representative (called an executor in other states) to administer your estate. The personal representative is responsible for gathering assets, paying debts and taxes, and distributing property to beneficiaries according to the will’s terms. If you do not name one, the court will appoint someone.

A will allows you to designate a guardian for your minor children. If both parents die, the court will consider the guardian named in the will. Without a will, the court makes this decision based on its own assessment of the child’s best interests.

A will can create testamentary trusts that take effect at your death. These trusts can hold assets for minor children until they reach a specified age, provide for a spouse with conditions, or protect a beneficiary’s inheritance from the beneficiary’s creditors. A testamentary trust is created within the will itself and only comes into existence after death and after probate.

What a Will Cannot Do

A will does not avoid probate. Every asset that passes through a will must go through the probate process, which in Florida can take six months to two years and involves statutory attorney fees that scale with the size of the estate. On a $500,000 estate, statutory fees alone reach approximately $15,000.

A will does not control assets with beneficiary designations. Life insurance policies, retirement accounts (IRAs, 401(k) plans), payable-on-death bank accounts, and transfer-on-death brokerage accounts pass directly to the named beneficiary regardless of what the will says. If your will leaves everything to your children but your life insurance names your ex-spouse, the ex-spouse receives the insurance proceeds.

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 at death. The will has no effect on these assets.

A will does not provide incapacity planning. A will only takes effect at death. If you become unable to manage your affairs during your lifetime, a will provides no mechanism for someone to step in on your behalf. Incapacity planning requires a durable power of attorney, a health care surrogate designation, and ideally a living trust.

A will does not protect assets from creditors. Assets passing through probate are subject to creditor claims during the probate process. A will provides no asset protection during your lifetime or after death.

Florida Will Requirements

Florida Statute § 732.502 sets the requirements for a valid will. The testator must be at least 18 years old and of sound mind. The will must be in writing (typed or printed, not handwritten). The testator must sign the will at the end, or direct another person to sign on the testator’s behalf in the testator’s presence. Two witnesses must sign the will in the presence of the testator and in the presence of each other.

Florida does not recognize holographic wills (entirely handwritten, unwitnessed wills). A handwritten will valid in another state may be admitted to probate in Florida under certain circumstances, but Florida residents should not rely on a holographic will.

A self-proving affidavit is strongly recommended. This is a sworn statement signed by the testator and both witnesses before a notary, attached to the will at the time of execution. The self-proving affidavit allows the will to be admitted to probate without requiring the witnesses to appear in court and testify. Florida Statute § 732.503 provides the form. Nearly all attorney-prepared wills include a self-proving affidavit as standard practice.

Revoking or Changing a Will

A will can be revoked at any time by executing a new will that expressly revokes all prior wills, or by physically destroying the will with the intent to revoke it. Writing “void” on a will or crossing out provisions does not reliably revoke or amend the document and can create ambiguity that leads to litigation.

A codicil is a formal amendment to an existing will. It must be executed with the same formalities as the original will (two witnesses, signatures in each other’s presence). Codicils are used less frequently today because it is usually simpler and clearer to execute an entirely new will rather than amend an existing one.

The Pour-Over Will

A pour-over will is a specific type of will used in conjunction with a living trust. It directs that any assets owned in the testator’s individual name at death (assets not already in the trust) be transferred into the living trust through probate. The trust terms then control how those assets are distributed.

The pour-over will serves as a safety net. Even with a fully funded living trust, it is common for some assets to remain outside the trust at death, either because they were acquired after the trust was created or because they were inadvertently left out of the funding process. The pour-over will ensures these assets are captured and distributed according to the trust’s terms rather than by Florida’s intestacy laws.

What Happens Without a Will

If a Florida resident dies without a will (intestate), Florida Statute § 732.102 determines who inherits. The rules are often misunderstood, particularly around whether a surviving spouse automatically inherits everything.

The default rules depend on the decedent’s family structure. If the decedent is married with no descendants outside the marriage, the surviving spouse inherits the entire estate. If the decedent has descendants from another relationship, the surviving spouse receives half, and the descendants receive the other half. If the decedent is unmarried, the descendants inherit. If there are no descendants, the parents inherit. If no parents survive, siblings inherit.

The court also appoints a personal representative when there is no will. The appointee may not be the person the decedent would have chosen, and the lack of a designated guardian for minor children means the court makes that determination independently.

Will vs. Trust

A will and a living trust are not interchangeable. A will goes through probate, is a public record, and only takes effect at death. A living trust avoids probate, remains private, and provides management during incapacity. For Florida residents with assets beyond a single home, a living trust is typically the more comprehensive estate planning solution, with a pour-over will included as part of the complete plan.

For individuals whose estates consist primarily of a homestead property and accounts with beneficiary designations, a simple will combined with a lady bird deed may accomplish the same goals at lower cost.

Cost

A simple will prepared by a Florida attorney typically costs $250 to $600. A will prepared as part of a comprehensive estate plan that includes a living trust, power of attorney, and health care directives is included in the trust package cost, which typically ranges from $1,500 to $4,500. Online and template-based will services are available at lower price points but carry the risk of errors in execution or provisions that do not comply with Florida law.