Your guide to creating a last will and testament in Florida

Creating a Florida last will and testament ensures your wishes are fulfilled after you die. This guide provides clear, concise advice on the legal requirements and steps to make your will valid under Florida law. From understanding age and mental capacity to appointing a personal representative, you’ll learn everything necessary to protect your estate and your loved ones’ future.

Key takeaways for creating your Florida last will and testament

• A last will and testament in Florida directs asset distribution, appoints a personal representative, and provides for minor children’s guardianship, and must be reviewed periodically to maintain validity, especially due to Florida’s non-recognition of handwritten wills.
• To create a valid will in Florida, one must meet specific requirements like being of legal age (18 and older, or an emancipated minor), possessing testamentary capacity, and having the document witnessed and signed by two individuals.
• Wills can be revised or revoked through a codicil or destruction of the original document but must adhere to legal formalities; alternatively, living trusts can bypass probate but have their own complexities and costs.

Do you need a last will and testament?

Although a last will and testament is not legally required, dying without a will means that the state and the local probate courts will decide how your assets are distributed among your surviving family. State intestate laws rarely consider the decedent's final wishes when the estate reaches a probate judge. If you want to ensure that your estate goes to specific people, creating a last will and testament is the best way to fulfill those wishes.

Intestacy: Dying without a will

 

Someone who dies without a will is called “intestate,” which invokes intestacy laws. In Florida, if there are no lineal descendants (parent to child), a surviving spouse will generally take all property of the deceased. However, the law provides for very different results depending on whether there is a surviving spouse or lineal descendants and whether any surviving lineal descendants are also the offspring of the surviving spouse.

Understanding the last will and testament in Florida

A Florida last will and testament is a legal document that outlines your wishes regarding the distribution of your assets, the appointment of a personal representative, and the guardianship provisions for your minor children after your passing. A valid will simplifies the probate process, which helps reduce legal expenses, ensures all assets are addressed, and guides the appointment of a guardian for minor children.

However, a will can become invalid if you fail to adhere to state laws or if certain life events occur. That’s why you should consider reviewing your will reviewed periodically. This is particularly important in Florida, which does not recognize holographic or handwritten wills.

Requirements for a Florida last will and testament

 

Age requirement

In Florida, individuals must be at least 18 years old or an emancipated minor to create a will. This age requirement ensures that the person creating the will can legally make such an important decision. Remember that a will created by an individual below the legal age is considered invalid under Florida law. Consequently, verifying the testator’s age during the will creation process is very important.

Mental capacity

The testator must also possess the mental capacity to create a valid will. This means the individual must understand the nature of the act of creating a will, the extent of their assets, and the identity of their beneficiaries. In Florida, testamentary capacity is generally assumed. However, if the will is contested, those supporting the will must provide substantial evidence demonstrating the testator’s mental capacity when the will was created.

Witness signatures

The validity of a Florida will significantly depend on the signatures of the witnesses. The will must be signed by the testator and two witnesses, who must also sign in each other’s presence. This process confirms the testator’s intent and the correct execution of the will.

The role of the witnesses in confirming the will’s validity is indispensable. They sign the attestation clause of a self-proving will, asserting that the testator signed the will in their presence. This reinforces the integrity of the will and helps prevent potential disputes later on. A self-proving affidavit can further strengthen the will’s validity. However, having your will notarized by a notary public is considered a best practice.

Types of assets covered in a Florida will

 

A Florida will covers various assets individually titled under your name and doesn't have a designated beneficiary. These assets, also known as personal and real property, will, include:

• Real estate properties
• Bank accounts
• Financial assets
• Vehicles
• Personal belongings

When including real estate properties in your will, you can list the decedent’s homestead property and other real estate assets you own. Similarly, for bank accounts and other financial assets, you can specify them as part of your estate, providing details such as the account numbers and financial institution names. You can also include tangible personal property, such as cars, boats, and motorcycles, in your will.

Probate process in Florida

The probate process in Florida comes into play after you die. This process involves validating your will in probate court, followed by the administration of your estate by the personal representative.

In Florida, you need to follow these steps to file your last will and testament for probate within 10 days following your death:

1. Initiate the probate process by filing your will
2. Ensure that your assets are distributed according to your wishes
3. Resolve any remaining debts or taxes

Filing your will for probate is pivotal in guaranteeing that your assets are distributed according to your wishes and that any remaining debts or taxes are resolved.

Choosing an executor

A Florida will also permits you to detail the method of asset distribution. The personal representative, also known as an executor, oversees the management of your estate after your death. They ensure that your estate is handled following the provisions of your will and in compliance with legal regulations, with oversight from the court.

The duties of an executor encompass managing the estate's assets, settling debts and taxes, allocating assets to beneficiaries, and supervising any legal matters about the estate. When choosing an executor, consider their health, expected lifespan, and ability to fulfill the responsibilities. You should also appoint a secondary executor as a backup if the primary choice cannot fulfill the role.

Guardianship provisions for minor children

 

If you have minor children, Florida will allow you to designate a guardian for them. This provision ensures that the upbringing and care of your children align with your values and wishes. A guardian must be at least 18 in Florida and have no felony convictions. If no guardian is designated in your will, the court must establish guardianship over your minor’s person's property first, which necessitates court approval.

Revoking or amending a Florida will

You can modify your Florida will by executing an amendment known as a codicil. This codicil must adhere to the exact legal requirements as the creation of the original will.

Alternatively, you can entirely nullify your will by either drafting a new one or physically destroying the original one. To revoke a will through written means, subsequent writing must be produced explicitly revoking the previous will.

Exceptions to the ability to distribute property

Not all property you own can be distributed through a Florida will. For example, property jointly owned with the right of survivorship cannot be devised by will.

Other restrictions on the ability to distribute property include the following:

• Homestead: Florida’s laws regarding the descent of the family homestead can get complicated, but in general, the surviving spouse takes a “life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death.”
• Disinheritance of spouse: One spouse cannot disinherit the other without a properly executed marital agreement. Florida law allows a spouse to claim an “elective share” under the will or a portion of the decedent’s property.

Writing your Florida last will and testament

When it is time to write your last will and testament, you must make sure that your will meets these basic requirements for a Florida last will and testament:

• Age: The testator must be at least 18 or an emancipated minor.
• Capacity: The testator must be of sound mind, capable of making decisions and reasoning when the will is signed.
• Signature: The testator or another person must sign the will under his direction and in his presence.
• Witnesses: Two competent witnesses must be present when the testator signs a Florida last will and testament to be valid. The witnesses must also sign the will in the presence of the testator and each other. It is recommended that your will be witnessed in front of a notary public.
• Writing: Florida wills must be written. Holographic or handwritten wills are not recognized as valid in Florida.

Common pitfalls to avoid when creating a Florida will

Crafting a Florida Will is a key step in estate planning. However, it’s essential to be aware of common pitfalls that could complicate the process. One such pitfall is the Florida Homestead Law, which stipulates that the Homestead cannot be devised in a will or a trust if there are minor children. Furthermore, if a will mandates the sale of the Homestead and distribution of the proceeds, those proceeds will forfeit creditor protection.

Another pitfall is the improper storage of a will. Improperly stored wills can raise doubts about their authenticity, potentially resulting in legal conflicts or invalidation. Hence, securely storing your will in a fireproof safe or another secure location and notifying reliable individuals about its location is very important.

Avoiding probate with living trusts

Setting up a revocable living trust is one method to bypass the probate process in Florida. This legal instrument enables the transfer of assets into a trust while you’re alive. The trust can be altered or annulled at any point during your lifetime and serves to circumvent the probate process upon your death.

Various assets, including real estate, bank and investment accounts, and business interests, can be transferred into a revocable living trust. However, certain retirement accounts should not be transferred into a living trust.

Establishing a revocable living trust has several benefits, including avoidance of probate, preservation of privacy, adaptable asset management, and decreased likelihood of legal disputes from heirs. However, potential disadvantages may include initial setup and ongoing maintenance expenses, the need to transfer assets into the trust, and possible constraints on control of the assets.

DIY wills vs. hiring an estate planning attorney

 

In Florida, residents have the legal right to draft their own will, and self-prepared wills are recognized as valid. The legal requirements for drafting a will are in the above section, "Writing your Florida last will and testament." However, drafting a DIY will come with its own set of challenges.

Though drafting your own will might appear attractive, engaging an estate planning attorney guarantees that your will adheres to state laws and provides proficient advice in creating a thorough estate plan. Engaging an attorney to draft an essential will in Florida may cost approximately $500. However, more intricate arrangements could result in fees of roughly $300 per hour for the attorney’s assistance.

If you want the convenience of a DIY will but the security of getting advice from an estate planning attorney, you should consider using an online company like LegalZoom. At LegalZoom, you can get access to estate planning templates while having the option of having an experienced estate planning attorney go over your will with you.

Summary

Having a comprehensive Florida last will and testament is crucial to estate planning. From understanding the key requirements of a Florida Will to avoiding common pitfalls, this guide has offered a deep dive into the essential elements of creating a valid will.

While the process may seem daunting, remember that the effort you put into creating a comprehensive will today can provide peace of mind for you and your loved ones in the future. So take that first step, consult a qualified estate planning attorney, and ensure your last wishes are honored.

Frequently asked questions

 

Can I write my own will in Florida?

Yes, as a Florida resident, you can write your own will without an attorney or document service, but you must ensure it meets all the requirements outlined in Part V of Chapter 32 of the Florida Statutes.

Does a last will and testament need to be notarized in Florida?

In Florida, a last will and testament does not need to be notarized to be valid. However, a notary is required to make the living will a self-proving, which can speed up the probate process.

Do wills have to be filed with the court in Florida?

Yes, in Florida, the custodian of the deceased person's original will must file it with the Clerk of the Circuit Court in the county where the person was domiciled within ten days of learning about the death.

Who inherits when there is no will in Florida?

If you die without a will in Florida and are married, your spouse will inherit all of your estate assets, even if you have children. However, if you have children from a previous relationship, your spouse will only inherit half of the estate, with the children inheriting the other half.

How do you do a simple last will and testament?

To create a simple last will and testament, decide whether to hire a lawyer or write your own will online. Then, identify your beneficiaries, choose a legal guardian for the health care of your child, and decide on an executor for your estate. Finally, consider other wishes, sign your will, find two witnesses, and get your will notarized.