What is a Last Will and Testament in Florida?
A last will and testament is a formal document that directs the disposition of a person’s property after death. A will is also often used to choose the guardian of minor children in the event of a parent’s death when there is no surviving biological or adoptive parent. The choice of guardian is a primary motivation when younger parents make a will.
A will 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 will is a document in which a person directs how their belongings should be distributed at their death.
- There are formal requirements for a last will and testament in Florida. Failure to follow the requirements could invalidate the will.
- A last will and testament is often used to name a guardian for any minor children.
Legal Requirements for a Last Will and Testament in Florida
Under Florida law, a last will and testament has the following requirements:
- You must be 18. The testator must be of sound mind. If the testator cannot understand the document they are signing, then the will is invalid. For that reason, children under 18 generally cannot make a will (as they lack legal competency).
- Must be in writing. The writing can be typed or handwritten, but oral wills are not valid in Florida.
- Must be signed by the testator. The testator is the legal term for the person making the last will and testament. The testator normally must physically sign their name. But if they cannot, they can appoint someone else to sign for them. If someone else is appointed, that appointed person cannot also be a witness.
- The testator’s signature must be at the end of the will. If the testator’s signature appears earlier in the will, the will could be found invalid under Florida law.
- The testator must sign the will in the presence of two witnesses. Technically, any competent person can be a witness. However, it is not a good idea for the witness to be related to the testator or to be a beneficiary of the will. In addition, it is important for the witnesses and the testator to sign a self-proving affidavit which is typically made part of the will at the conclusion of the document. The self-proving affidavit makes probating the will a much easier process, as it eliminates the requirement that the witnesses testify in the probate proceeding as to the authenticity of the will.
- The two witnesses must sign the will in the presence of the testator and in the presence of each other. Each witness and the testator must all be in the room together and sign at the same time.
The requirements surrounding the execution of a last will and testament in Florida are established by section 732.502 of the Florida Statutes. Note that the statute requires that an amendment to the will (known as a codicil) must 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.
After a person dies, his heirs must “prove” the will to start probate. Proving a will consists of presenting to the court 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 section 732.503 of the Florida statutes. To be a self-proving will, the will must be acknowledged by the testator (person who makes the will) and the two witnesses with a notary. It is not strictly required that a will be self-proving to be valid, but it makes it much easier to admit the will to probate once the testator dies.
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. A will should be drafted by an experienced Florida estate planning attorney to ensure that it is properly drafted, meets all Florida will requirements, and is executed under the provisions of Florida law. Preparation of a will by someone other than a lawyer may constitute the unauthorized practice of law, and an improperly drafted or executed will may increase probate fees and estate costs.
Important: The requirements for a Florida last will and testament may not be complicated, but they are strictly enforced.
Understanding a Last Will and Testament in Florida
A person can write a last will and testament during their lifetime. It contains instructions that are carried out at the person’s death.
The will can be changed during the person’s lifetime.
In the will, the testator (the person writing the will) names a personal representative. In some states, a personal representative is called an executor. The personal representative is in charge of administering the testator’s property when the testator dies. In other words, the personal representative makes sure that the instructions in the last will and testament are carried out.
The personal representative acts as the decedent’s legal representative and administers that person’s estate through probate. 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 other close relative of the person making the will.
The general Florida rule is that 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 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.
A simple will in Florida typically makes one’s spouse the sole beneficiary and personal representative, with the remainder going to any children.
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.
To contest a will in Florida, a person must file a petition in the probate court case. Not just anyone can file a will contest, however. The person must be a named beneficiary in the probated will, in a previous will, or not named but otherwise eligible to inherit under intestate laws.
Still, most will contests in Florida are not successful. To succeed the person challenging the will must show that the will was procured by fraud, duress, or undue influence. This is a hard evidentiary burden to meet. Ultimaetly, a person in Florida can leave what they have to whoever they want. The only exceptions concern spouses and minor children. Otherwise, a person does not have to leave anything to anyone, including their adult children.
Leaving Tangible Personal Property in a Will
Under section 732.515 of the Florida Statutes, a will can refer to a list of tangible personal items (jewelry, furniture, etc) with instructions for distributions. The specific items and distribution instructions do not need to be included in the will itself. The requirements for the list 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 excution of the original will. In fact, it can even be changed at any time.
Florida Will vs. Trust
Most people today use a living trust instead of a will in Florida 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 lives and distributes trust property to named beneficiaries after the trustmaker dies. The differences between a will and a trust in Florida include:
- A will must be probated after the testator dies, while a trust is administered without formal court supervision.
- 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.
A trust controls property titled in the name of the trust. The will controls property titled in the individual name of the decedent.
Tip: Many people do not need a trust. For others, a trust is a controlled way to distribute property without probate.
How to Revoke Your Will
There are a few ways you can revoke your will in Florida:
- Destroy it. Any amount of destruction would qualify as revoking your will. 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 time you create a new will, the new will automatically revokes and overrides any previous will. The new will should include a statement that all prior wills are revoked.
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 his assets to his living trust is called funding the trust.
Often, someone will create a living trust agreement but neglect to convey their individually owned assets to the trustee during their lifetime. After death, the trust owns no assets to administer as the trustmaker directed in the trust agreement.
A “pour over” will funds the decedent’s living trust after death. The pour-over will is just like a regular will, but rather than leaving individually titled assets to heirs, the will leaves these assets to the trust. The 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 trust. The living trust agreement controls the ultimate disposition of the property received.
A pour-over will administers the decedent’s assets through a probate proceeding; the assets are legally conveyed to the trustee 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 probate of a pour-over 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.
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 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.
Living Will in Florida
A Florida living will is the written declaration of your intentions for the kind and amount of medical treatment you desire. The point of the living will in Florida is to clarify your intentions should you be in a situation where you cannot speak and cannot communicate.
It is called a living will because it takes effect while you are living.
A doctor will follow the direction of your living will only when you cannot make your own medical decisions. Legally, you must lack capacity, which is the legal term for not being able to understand the nature and consequences of your treatment and decisions. Or, you may lack the ability to communicate in any way—no speaking, writing, gestures, head nods, and so on.
If you lack capacity or cannot communicate, your living will (which you signed prior to this condition) will outline to your physician and family whether you do or don’t want certain medical procedures.
Most often, the living will states under what conditions you should be kept alive by life-sustaining treatment.
What’s the difference between a will and a living will? A will is the written instructions for distributing your estate (your assets upon death). Despite using the word “will,” a living will has nothing to do with a regular will. Instead, a living will is just the written instructions for when to withhold certain medical treatment.
Do You Have a Living Will?
When you go to a hospital for a medical procedure, they often ask you, “Do you have a living will?” Sometimes they may want a copy of the living will as well.
While it is OK to tell the medical staff that you have a living will, we often recommend that you not provide the actual document to the hospital right away.
Instead, you may want to consider having your family member who is taking care of you decide when to give the living will to the facility.
Common Questions About a Last Will and Testament in Florida
Below are answers to some common questions asked about a last will and testament in Florida.
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.
What does it cost to make a will?
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.