Florida Last Will and Testament Guide

What Is a Last Will and Testament in Florida?

A Florida last will and testament is a legal document that states who should receive your property after death and who should be in charge of carrying out your wishes. A properly drafted will can name guardians for minor children, designate beneficiaries, and avoid family disputes.

Without a valid will, Florida law—not you—decides who inherits your assets.

How Does a Last Will and Testament Work?

A will is a written document that directs how your probate assets should be distributed after your death. It also names a personal representative (executor) to manage your estate during probate. A will only controls assets that are subject to probate—such as property held in your name alone.

Assets that are jointly owned or have beneficiary designations, like life insurance or retirement accounts, pass outside of the will.

Making a last will and testament also allows you 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.

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

Requirements for a Valid Will in Florida

Florida law requires strict formalities for a will to be valid:

• The testator (person making the will) must be at least 18 years old and of sound mind.
• The will must be in writing.
• The will must be signed at the end by the testator.
• The signing must be witnessed by two people who sign in the presence of the testator and each other.
• Florida does not recognize handwritten (holographic) or oral (nuncupative) wills.

Most Florida wills are also self-proved, meaning the witnesses sign a notarized affidavit confirming the will’s validity. This avoids having to track down witnesses after death.

How to Write a Last Will and Testament in Florida

To make a will in Florida, follow these five steps:

1. Pick a personal representative.
2. Decide on specific gifts.
3. Determine who will inherit the residuary estate.
4. Pick who you want to be guardian for any minor children.
5. Choose between a will and a living trust.

Your attorney can help you make decisions for 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.

How to 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.

What Is a 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.

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.

Differences Between a Florida Will and 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.

What if Someone Dies Without a Will?

If you die without a will, Florida’s intestate succession laws determine who inherits your property. The default rules are based on your family structure:

• If you are married with no children outside the marriage, your spouse inherits everything.
• If you have children from another relationship, your spouse and children split the estate.
• If you are unmarried, your children inherit. If no children, your parents or siblings may inherit.

The court will also appoint a personal representative and guardian for your minor children, which may not match your wishes.

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.