A last will and testament is the cornerstone of most estate plans. This legal document allows you to direct how your property will be distributed after your death, name a personal representative to manage your estate, and designate guardians for your minor children. Florida has specific requirements for creating a valid will, and failing to follow these rules can result in your will being declared invalid. An Orlando, FL estate planning lawyer can ensure your will meets all legal requirements and accurately reflects your wishes.
Florida Requirements for a Valid Will
Florida law establishes strict requirements for executing a valid will. Under Florida Statutes Section 732.502, a will must meet the following criteria:
The testator (the person making the will) must be at least 18 years old or an emancipated minor. The testator must be of sound mind, meaning they understand the nature and extent of their property, know who their natural beneficiaries are, and understand that signing the will distributes their property at death.
The will must be in writing. Florida does not recognize oral wills under any circumstances, regardless of how many witnesses were present when the testator expressed their wishes.
The testator must sign the will at the end, or another person may sign the testator’s name in their presence and at their direction if the testator is physically unable to sign.
Two witnesses must be present when the testator signs the will or acknowledges their signature. Both witnesses must sign the will in the presence of the testator and in the presence of each other.
While Florida law does not require notarization for a will to be valid, adding a self-proving affidavit signed by the testator, witnesses, and a notary public streamlines the probate process by eliminating the need to locate witnesses after the testator’s death.
What a Will Can Do
A properly executed will accomplishes several important functions in your estate plan.
A will directs the distribution of your probate assets to the beneficiaries you choose. You can leave specific items to specific people, divide your estate into percentages, or create any distribution scheme that reflects your wishes.
A will names a personal representative (called an executor in other states) who will be responsible for administering your estate. This person collects your assets, pays your debts and taxes, and distributes your remaining property to your beneficiaries.
A will designates guardians for your minor children. This is one of the most important functions of a will for parents, as it ensures your children will be raised by someone you trust rather than whoever a court selects. Learn more about guardianship for minor children in Florida.
A will can create testamentary trusts that come into existence at your death. These trusts can provide for minor children, protect assets for beneficiaries with special needs, or control distributions to beneficiaries over time.
A will can also forgive debts owed to you, make charitable gifts, and express your wishes for funeral arrangements.
What a Will Cannot Do
Understanding the limitations of a will is equally important for comprehensive estate planning.
A will does not control assets with beneficiary designations. Retirement accounts, life insurance policies, and payable-on-death bank accounts pass directly to named beneficiaries regardless of what your will says. Coordinating your beneficiary designations with your will is essential.
A will does not avoid probate. Assets that pass through a will must go through the Florida probate process, which can be time-consuming and expensive. If avoiding probate is a priority, you may want to consider a living trust or other probate avoidance strategies.
A will does not control jointly owned property with rights of survivorship. When you own property jointly with another person and one owner dies, the property automatically passes to the surviving owner outside of probate.
A will does not provide for your care during incapacity. You need a durable power of attorney and healthcare directives to ensure someone can manage your affairs and make medical decisions if you become incapacitated.
A will cannot override Florida’s elective share statute. Under Florida Statutes Section 732.201, a surviving spouse is entitled to 30 percent of the elective estate, regardless of what the will provides.
Types of Wills in Florida
Florida recognizes several types of wills, though not all are recommended.
An attested will is the standard will that meets Florida’s formal requirements with witnesses and signatures. This is the most reliable form of will and is strongly recommended.
A self-proved will includes a notarized affidavit that eliminates the need to track down witnesses during probate. This affidavit should be attached to every Florida will.
A holographic will is written entirely in the testator’s handwriting without witnesses. Florida does not recognize holographic wills executed in Florida, though it may accept one validly executed in another state where holographic wills are permitted.
A nuncupative will is an oral will. Florida does not recognize oral wills under any circumstances.
Common Will Mistakes to Avoid
Improper execution is the most common reason wills are challenged. Having only one witness, failing to have witnesses sign in each other’s presence, or not signing at the end of the document can invalidate your will.
Failing to update your will after major life events leaves outdated instructions in place. Marriage, divorce, births, deaths, and significant changes in assets all warrant a review of your estate plan. Learn more about when to update your estate plan.
Naming a personal representative who cannot serve under Florida law causes delays. Non-resident personal representatives must be related to you by blood, marriage, or adoption, or they must be a Florida resident.
Using generic online templates without legal guidance often results in documents that fail to account for Florida’s specific requirements or your unique family circumstances.
Create Your Will with Confidence
A properly drafted will provides peace of mind that your wishes will be honored and your family will be protected. Magill Law Offices has helped Orlando families create effective estate plans for decades, bringing the knowledge of a former University of Central Florida Adjunct Professor in estate planning to every client engagement.
To discuss your will and estate planning needs, contact Magill Law Offices to schedule a free consultation.