Last Will and Testament Steps and Requirements

What Is a Last Will and Testament?

A last will and testament is a legal document that specifies who will inherit your property after your death. After writing a will, you still retain full control over your assets. You can update the will at any time during your life.

In Florida, a will is the most straightforward way to provide for beneficiaries. Wills are used to (1) direct asset distribution, (2) appoint guardians for minor children, (3) express final wishes like funeral arrangements, and (4) clarify who will administer the estate during probate.

How Wills Work

In Florida, a will takes effect only after the individual’s death. During their lifetime, the will creator (referred to as the “testator”) retains full control over their assets, including the ability to change the terms of the will. When the testator dies, the will goes through probate, a court-supervised process that oversees the transfer of assets to beneficiaries.

A personal representative, named in the will, manages this process, which includes paying debts and taxes and distributing the remaining assets. The probate court ensures that the will is valid and its terms are carried out correctly. While probate may sound intimidating, having a clear and properly drafted will can streamline the process.

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 typical 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 Create a Last Will and Testament in Florida

Here are the steps:

1. Identify Beneficiaries: Start by listing who should inherit your property.
2. Select a Personal Representative: Choose a trusted person to administer the will.
3. Name Guardians for Minor Children: If applicable, designate guardians to care for children.
4. Write the Will: The will must clearly state the testator’s wishes.
5. Sign, Witness, and Notarize: The testator must sign the will in front of two witnesses, who must also sign in the testator’s presence.

Requirements for Wills in Florida

A will must comply with certain Florida laws to be valid:

Florida law has specific requirements for a will to be considered valid:

1. The testator must be at least 18 years old and of sound mind.
2. The will must be in writing; oral wills are not recognized.
3. Two witnesses are required, and they must both sign the will in the testator’s presence.
4. The will must be signed by the testator, or by someone directed by the testator to sign in their presence.
5. To simplify the probate process, Florida allows wills to be “self-proving,” meaning the testator and witnesses sign an affidavit before a notary public.

The requirements for a will in Florida are strictly enforced. A valid will must follow all requirements provided by section 732.502 of the Florida Statutes. A will that does not comply with the formalities of signing and witnessing can be challenged, and the will invalidated.

Pros and Cons of Having a Last Will and Testament

Pros:

• Asset Distribution Control: A will lets you decide who receives your assets, preventing default distribution under intestacy laws.
• Guardian Appointment: You can designate a guardian for minor children, providing clarity and security for your family.
• Simple Setup: Creating a will is generally less expensive and less complex than other estate planning tools.

Cons:

• Probate Requirement: Wills must go through probate, which can be time-consuming and costly.
• Limited Asset Protection: A will does not protect assets from creditors or estate taxes.
• Potential for Disputes: If not clearly written, a will can be challenged, leading to family disputes and legal battles.

While a last will and testament can be helpful, individuals with complex estates might consider additional planning tools, like living trusts, to better achieve their goals.

Updating Your Last Will and Testament

Florida law 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.

Life events often require updates to your will. Changes in family dynamics, such as marriages, divorces, births, or deaths, can affect how assets should be distributed.

To update a will in Florida, you can either create a new will or add a codicil, which is an amendment to the existing will. Be sure to follow the same signing and witnessing requirements for any updates. Failure to do so makes the changes invalid.

What Does a Personal Representative Do with the Will?

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 a 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.

Frequently Asked Questions About Florida Wills

Do I need a lawyer to create a will in Florida?
No, you do not need a lawyer to create a will. However, working with an attorney ensures that your will meets all state requirements and accurately reflects your wishes.

What makes a will valid in Florida?
To be valid in Florida, a will must be written, signed by the testator (person making the will), and witnessed by two people who are present at the signing.

Can I change my will after I make it in Florida?
Yes, you can modify your will at any time during your life, provided you are of sound mind. Changes must be properly executed to be valid.

What happens if I die without a will in Florida?
If you die without a will in Florida, your assets are distributed according to the state’s intestacy laws, which prioritize close relatives such as spouses and children.

Do Florida wills have to be notarized?
Notarization is not required for a Florida will to be valid, but having a self-proving affidavit notarized can help the will be accepted by the probate court without requiring witness testimony.

How much does it cost to make a will in Florida?
The cost to make a will in Florida can range from a few hundred dollars for a simple will prepared by an attorney to higher fees for more complex wills.