Florida Last Will and Testament

A Florida last will and testament, or “will,” is a formal document wherein a Florida resident directs the disposition of his property (assets) after death.

A will is often used to choose the guardian of minor children in the event of a parent’s death and 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.

Personal Representative

A will designates the person who will act as personal representative (executor) after death. The personal representative acts as decedent’s legal representative and is charged with administering 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. A last will and testament in Florida may nominate two or more persons to serve jointly as personal representative.

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

Florida Will Requirements

A will in Florida must meet the following requirements to be valid:

1. It must be in writing.
2. It must be signed by the testator (person making the will).
3. The testator signature must be at the end of the will.
4. The testator must sign the will in the presence of two witnesses.
5. The two witnesses must sign the will in the presence of the testator and in the presence of each other.

After a person dies, his heirs must “prove” the will in order 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.

What Can Someone Do in a 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 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.

A simple will in Florida typically makes one’s spouse the sole beneficiary and personal representative, with the remainder going to any children.

Florida Will vs. Trust

Most people today use a living trust instead a will in Florida to express their instructions for the distribution of 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:

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.

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

Ancillary Administration in Florida

In Florida, ancillary administration is the process to probate a Florida home or other real property for a non-resident.

In other words, if a resident of another state dies while owning a home in Florida, such as a rental or vacation home, then the executor of the deceased person’s estate must start a separate Florida probate just to handle the Florida property.

Ancillary administration proceedings are governed by Florida Statute 734.102. Just like with the regular probate procedure, the first step in ancillary administration is to appoint a personal representaive.

Unlike with a Florida resident, the personal representative, or executor, of the estate does not need to be related to the deceased person or a Florida resident. Instead, as long as the personal representative is qualified to serve under the laws of the state where the deceased individual died, then the personal representative will be qualified to serve in Florida.

Otherwise, ancillary administration will proceed using regular probate procedures.

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 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 Probate of Last Will

Probate is a legal proceeding that administers the provisions of a decedent’s testamentary last will after the decedent’s death. Probate is designed to pay the decedent’s creditors and to transfer title of the decedent’s property to heirs designated in the will. The general rule is that all assets in the decedent’s personal name are included in and require probate. Probate is not required for assets that transfer to designated individuals by contract and that are exempt from the decedent’s creditors, such as retirement accounts, life insurance, and tenants by entireties property. Assets that are subject to probate comprise “the probate estate.”

There are important initial steps in probate law. The first step is to identify, value, and assemble the assets which comprise the probate estate. The other initial step is to identify the decedent’s creditors to whom the decedent owed money or who had legal claims against the decedent.

Common Questions About Wills 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 that 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 will be 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 will attempting to probate the will after the testator’s death.

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.