What Is a Last Will and Testament?

A Florida last will and testament is a legal document that communicates a person’s final wishes regarding possessions and dependents. A last will and testament allows you to designate heirs for your property, appoint guardians for minor children, and specify final arrangements for your estate.

A last will and testament is administered through a legal proceeding called probate. Probate is designed to pay a decedent’s creditors and, after creditor claims are resolved, to legally transfer title to the decedent’s property to heirs named in the will.

A person can write a last will and testament at any time. The will can be changed any number of times. A will overrides the default inheritance provisions of Florida law.

Legal Requirements for a Will in Florida

A last will and testament must comply with Florida law to be valid. Here are the six requirements:

  1. Age Requirement: The person making the will (testator) must be at least 18 years old.
  2. Mental Capacity: The testator must be of sound mind, understanding the nature and extent of their assets and the decisions they are making.
  3. Voluntary: The will must be made voluntarily, without coercion or undue influence.
  4. In Writing: The will must be written.
  5. Witnesses: The will must be signed in the presence of two witnesses, who also must sign the will in the presence of the testator.
  6. Proper Execution: The will must be properly executed according to Florida law, including the correct signing and witnessing procedures.

Steps to Create a Will in Florida

Here are the steps to making a will in Florida:

  1. Pick a personal representative.
  2. Decide on any specific gifts.
  3. Decide who you want to be your beneficiaries.
  4. Select guardians for minor children.
  5. Choose what property to include in the will.
  6. Draft the will document.
  7. Sign the will with two witnesses and a notary.
  8. Keep the original will safe.

Your attorney can help you with each step. As a general rule,  there are no restrictions about the directions someone can write in their will. A person can give what they want, to whom they want, and how they want after their death.

A will’s testamentary directions can be simple, or the directions can be complex and detailed. Provisions in a will that make a bequest deemed contrary to public policy, such as a bequest conditioned upon race or religious criteria, are not enforceable. Also, an attorney preparing a will may not make themselves their client’s heir. A typical simple will in Florida makes one’s spouse the sole beneficiary and personal representative, and it gives all assets equally to their children after the second spouse’s death.

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What Is a Personal Representative?

The personal representative is in charge of administering the testator’s property when the testator dies, including probate administration. In other words, the personal representative ensures the instructions in the last will and testament are carried out.

The personal representative has other functions. The personal representative acts as the decedent’s legal representative. 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.

In Florida, a last will and testament may nominate two or more persons to serve jointly as personal representatives. A personal representative in Florida must be either a Florida resident, or if not a resident, the decedent’s spouse, sibling, parent, child, or another close relative.

The person nominated in a will to be the personal representative must be appointed by a probate judge after the testator’s death. The person nominated in the will has no powers or rights to act regarding the decedent’s property until a court order appoints them. Certain parties may file objections in probate court to the appointment of personal representatives nominated in a will.

Last will and testament family

Revoking a Florida Will

There are a few ways to revoke a will in Florida:

  • Destroy it. Any manner of destruction qualifies as revocation. For example, you can burn the will, tear it up, shred it, throw it away, etc.
  • Direct someone else to destroy it in your presence. This is much less common, but it is a legal way to revoke your will.
  • Create a new will. Any new will automatically revokes and overrides any previous will. The new will should include a statement that all prior wills are revoked.

Contesting a Will in Florida

Under Florida law, a last will and testament can be voided if the will was procured by fraud, duress, or undue influence.

A person must file a petition in a probate court case to contest a Florida will. Not just anyone can contest a will. The claimant must be either a named beneficiary in the probated will, in a previous will, or if not named, they must be otherwise eligible to inherit under intestate laws.

Most will contests in Florida are not successful. It is difficult to assemble sufficient evidence to prove that a will was procured by fraud, duress, or undue influence. The basic rule is that a person in Florida can leave their assets to whomever they want as long as they take care of their spouses and minor children. A person does not have a legal obligation to leave anything to anyone else, including any one of their adult children.

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Tangible Personal Property

Under section 732.515 of the Florida Statutes, a will may have instructions about the distribution of a list of the decedent’s tangible personal (jewelry, furniture, etc). The specific items and distribution instructions do not need to be included in the will document itself. The requirements to leave personal property in a will include:

  • The will must refer to the list.
  • The list must be in writing.
  • The list must describe the items and the devisees with reasonable certainty.
  • The list can be prepared before or even after execution of the original will, and the list may be amended from time to time.

Differences Between a Florida Will and Living Trust

In Florida, most people today use a living trust instead of a will to express their instructions for distributing their property after death. The living trust is a self-settled revocable trust that holds property for the benefit of the trustmaker during their life and distributes trust property to named beneficiaries after the trustmaker dies. The differences between a will and a trust in Florida include:

  1. A will must be probated after the testator dies, while a trust is administered without formal court supervision.
  2. A trust enables the trustmaker to control the timing, manner, and amount of distributions for an extended period after death, while a will typically results in a single distribution through probate.
  3. A living trust usually avoids the need for guardianship in the event of the trustmaker’s incapacity during their lifetime.

A trust controls property titled in the name of the trust. The will controls property titled in the individual name of the decedent.

Property that transfers automatically to a beneficiary through a lady bird deed is not subject to a will or a trust.

Benefits of Having a Will

Here are the benefits of having a will in Florida:

  1. Control the distribution of assets. Having a will allows you to specify how you would like your assets to be distributed upon your death.
  2. Appointing a guardian for minor children. A will allows you to appoint a guardian for your minor children.
  3. Designate the person in charge. In a Florida will, you can specify who should be your personal representative upon your death. The personal representative is the person empowered with carrying out the instructions in the will and admitting the will to probate.

Pour Over Will in Florida

The trust-based estate plan does not affect any assets unless the assets have been conveyed to the trustee of the trust. The process by which the trustmaker transfers their assets to their living trust is called funding the trust.

Often, someone creates a living trust agreement but neglects to convey their individually owned assets to the trustee during their lifetime. After death, the trust owns no assets to administer as the trustmaker had directed in the trust agreement.

A “pour over” will funds the decedent’s living trust after death. The pour-over will bequeaths individually owned assets to the decedent’s living trust rather than to their individual heirs. In other words, the pour-over will appoints the living trust as its heir. The will says that any assets in the decedent’s name (assets that haven’t yet been put in the trust) are “poured over” to the living trust.

A pour-over will administers the decedent’s assets through a probate proceeding; the assets are legally conveyed to the trustee of the living trust at the conclusion of the probate. The best practice is to transfer assets to the living trust before death to avoid the delay and expense of probating a pour-over will.

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 online. 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.

What if Someone Dies Without a Will?

If a person dies without a last will and testament, that person is considered to have died intestate. The consequences of dying intestate in Florida are explained in Florida Statute Chapter 732, Part I. The statute dictates how a person’s property is divided among the survivors, including a decedent’s spouse, children, and other heirs.

Florida will requirements

Holographic Wills in Florida

Florida does not recognize holographic wills. A holographic will is a statement of last wishes that is not executed with the legal formalities of a last will and testament. A classic example is a persona writing down their wishes on a napkin shortly before their death.

In fact, Florida will not recognize a holographic will even if it was written in another state that does allow holographic wills.

If someone has a holographic will in Florida, it is treated as if they died without a will.

FAQs About Florida Wills

Below are answers to some common questions asked about a last will and testament in Florida.

How does a last will and testament work in Florida?

A Florida last will and testament allows you to specify how your assets will be distributed after your death. The document must meet state requirements to be enforceable. The last will and testament must be signed by you with two witnesses and a notary.

Can you write your own will in the state of Florida?

A Florida resident can write their own will without an attorney or using a document service. However, the person will still need to follow all of the will requirements under Florida law. The requirements are outlined in Part V of Chapter 32 of the Florida Statutes.

How much does it cost to make a will in Florida?

It costs between $1,000 and $1,500 for a will in Florida. The price typically includes other basic documents, such as a designation of health care surrogate, living will, and power of attorney.

The cost of a will in Florida generally depends on the type of company a person hires to draft a will. A general document production, such as Legalzoom, will typically charge a low flat fee using the form inputs from the individual.

Having an attorney draft the will is more expensive. The higher cost can be worthwhile if you are looking for legal advice about how the will should be drafted, how it can be customized, and whether certain options are best for your specific situation. A good attorney will not simply sell you a form, but will make sure that your specific needs are met by the will and other estate planning documents.

Are do-it-yourself wills valid in Florida?

A do-it-yourself will is valid in Florida. There is no legal requirement to have an attorney draft a will. However, the laws governing wills in Florida are strict. The requirements for a valid will are not relaxed just because a person chose to write the will themselves.

Does a last will and testament need to be notarized in Florida?

Technically, a last will and testament does not need to be notarized in Florida.

But the best practice is to have a self-proving will, which means that the signatures of the testator and the two witnesses are notarized. Failing to include a self-proving provision in the will with properly notarized signatures can cause headaches with probate.

Does a will have to be filed with the court in Florida?

Yes, the original will must be filed with a court in Florida to start the probate process.

What is a personal representative?

A personal representative is the person who will manage your affairs after your death. Your will should designate any backups should your initial choice not be able to do it.

How can you change a will in Florida?

A person can change their will in Florida by signing an amendment, which is also known as a codicil. The statute requires that an amendment be executed with the same legal formalities as the original will. In other words, any amendment to the will must be in writing and signed by the testator in the presence of two witnesses.

What is a self-proving affidavit?

After a person dies, their heirs must “prove” the will to start probate. Proving a will consists of presenting evidence that the will was properly executed. A Florida will can be made “self-proving.” A self-proving will in Florida is one that does not need further authentication before being admitted into probate. The law that allows a will to be self-proving in Florida is Florida Statute 732.503. To be self-proving, the will must be acknowledged by the testator, two witnesses, and a notary.

Jon Alper

About the Author

Jon Alper is a nationally recognized attorney specializing in asset protection planning. He has over 35 years of experience and graduated with honors from the University of Florida Law School.

Jon has been recognized as a legal expert by media outlets such as the New York Times and the Wall Street Journal. He has helped thousands of clients protect their assets from creditors.

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