Last will and testament in Florida

Last Will and Testament in Florida

Legal Definition of Florida Will

In Florida, a will is a legal document that directs who will receive property after a person dies. A will also allows a person to choose the guardian of a minor child should both parents die before the child. The choice of guardian is a good reason for younger parents to make a last will and testament. The directions in a will override the default inheritance provisions of Florida law.

A Florida 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 person can write a last will and testament at any time during their lifetime. The will can be changed any number of times.

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.

We help families throughout Florida.

We take care of all the estate planning documents you need. You can get everything done remotely. Start with a free phone or Zoom consultation.

Alper Law attorneys

Legal Requirements for Wills in Florida

The requirements for a will in Florida are strictly enforced. A will that does not comply with the formalities 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.

How to Create a Will in Florida

To create a will in Florida, you must follow all requirements provided established by section 732.502 of the Florida Statutes. Under Florida law, a last will and testament:

  • Must be signed by the testator. The testator is the person making the last will and testament. The testator must be over the age of 18 and be mentally competent. 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 have the signature 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.
  • Must have two witnesses. Any competent person can be a witness. However, it is not a good idea for a 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 at the conclusion of the document. The self-proving affidavit makes probating the will easier as it eliminates the requirement that the witnesses testify in the probate proceeding to authenticate the will.
  • Must be signed by everyone in the same room. Each witness and the testator must all be in the room together and sign at the same time.
  • Can be revoked or amended. A person has the right to amend their own will at any time or even revoke it entirely.
  • Are difficult to challenge. In Florida, wills can be contested if they are procured by fraud or undue duress. However, that is very difficult to prove. Most challenges to wills are not successful in Florida.
  • Are not as flexible as trusts. Unlike a trust, a will be must be probated and cannot direct the timing and manner of distributions.

Amendments

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.

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.

Personal Representative

In the will, the testator (the person writing the will) nominates 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, including administration of probate. In other words, the personal representative makes sure that 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 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 they are appointed by a court order. Certain parties may file objections in probate court to the appointment of personal representatives nominated in a will.

How to Revoke a 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.

Leaving Tangible Personal Property in a Will

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.

Florida Will vs. Living 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 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.

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.

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 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.

Holographic Wills

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.

We help families throughout Florida.

We take care of all the estate planning documents you need. You can get everything done remotely. Start with a free phone or Zoom consultation.

Alper Law attorneys

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.

Jon Alper

About the Author

I’m a nationally recognized attorney specializing in asset protection planning. I graduated with honors from the University of Florida Law School and have practiced law for almost 50 years.

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