Last Will and Testament in Florida

Quick Summary

• A last will and testament specifies how a person’s assets should be distributed upon their death.
• It designates a personal representative to manage the estate, handle debts and taxes, and ensure that the decedent’s wishes are carried out.
• A will can outline provisions for the guardianship of minor children.

What Is a Last Will and Testament?

A last will and testament is a legal document that outlines how a person’s assets and responsibilities are to be handled after their death.

It specifies who will inherit the assets, who will be the executor to manage the estate, and, if applicable, guardianship of any dependents.

Why Should You Get a Will?

Getting a will ensures that your assets are distributed according to your wishes after your death. It also simplifies the legal process for your heirs, potentially reducing stress and conflict among family members.

It also lets you name a guardian for minor children, which is a primary motivation when younger parents make a will.

Key Requirements for a Valid Will in Florida

1. Be At Least 18
   • The person making the will (testator) must be at least 18 years old or an emancipated minor.
   • The testator must be of sound mind at the time the will is created, meaning they understand the nature of the document, the nature and extent of their property, and the identity of those who are the natural beneficiaries.
2. Be in Writing
   • The will must be written. Florida does not recognize oral wills.
   • It can be typed or handwritten. If handwritten (a holographic will), it is valid as long as it meets other statutory requirements, although it is not recommended due to potential challenges in probate.
3. Have Two Witnesses
   • The will must be signed by the testator in the presence of at least two witnesses.
   • The witnesses must also sign the will in the presence of each other and in the presence of the testator.
4. Be Self-Proved
   • Florida law does not require a will to be notarized to be valid. However, creating a “self-proving” will by adding a notarization can streamline the probate process. A self-proving will includes a notarized affidavit confirming the identities of the testator and witnesses, which can avoid the need for witness testimony during probate.

What Happens If You Don’t Meet the Requirements?

The formal requirements for a will in Florida are strictly enforced. A will that does not comply with the rules of signing and witnessing can be challenged, and the will invalidated.

What Should Be Included in a Florida Last Will and Testament?

• Identification of the Testator:
  • Clearly state your name, residence, and the declaration that this document is your will.
• Appointment of an Executor:
  • Nominate a trusted individual to act as the executor, who will manage the estate, pay debts, and distribute the assets according to the will’s instructions.
• Asset Distribution:
  • Specify which assets go to which beneficiaries. Be as clear as possible to avoid ambiguities that could lead to disputes.
• Guardianship:
  • If you have minor children, designate a guardian to care for them in the event of your and the other parent’s death.
• Other Provisions:
  • Include instructions for pets, digital assets, and personal items.

Who Can You Leave Your Property to in Your Will?

There are no restrictions about the directions someone can write in their will. However, you cannot disinherit your spouse or minor children.

A person can give what they want, to whom they want, and the way they want after their death. A will can be simple or the directions in a will can be complex and detailed.

There are exceptions that can invalidate provisions in a will that make a bequest deemed contrary to public policy such as a bequest conditioned upon race or religious criteria.

Also, an attorney preparing a will may not make himself an heir of his client.

What Is a Personal Representative?

In Florida, a personal representative is an individual appointed to administer the estate of a deceased person.

This role is similar to an executor and involves responsibilities such as gathering the deceased’s assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries according to the will or state law if there is no will.

The personal representative must act in the estate’s best interest and must be approved by a court.

The personal representative has the right to bring legal claims on behalf of the decedent or defend claims of third parties against the probate estate. A last will and testament in Florida may nominate two or more persons to serve jointly as personal representatives.

Who Can Be a Personal Representative?

A personal representative in Florida must be either a Florida resident or, if not a resident, the decedent’s spouse, sibling, parent, child, or other close relative of the person making the will.

Buying Free Will Templates

Using a template for a will in Florida is cheaper than hiring an attorney to draft a will. Some will templates are free. Be careful that a free will template complies with Florida law and is not just a generic will template for any state.

The benefits of hiring an attorney to prepare your will include:

• The attorney will suggest which documents are best to implement estate planning.
• The attorney educates the client about optional provisions for a will or trust, and the attorney is available to answer questions.
• The attorney will arrange for a proper signing of the will and related documents including the witnesses and notaries required.
• The attorney can customize the will and accomplish the client’s individual goals and concerns.

Common Questions About Wills in Florida