Florida Last Will and Testament Guide

What Is a Last Will and Testament?

A last will and testament is a legal document that specifies how your property will be distributed after your death. It allows you to retain full control over your assets during your lifetime and can be updated or changed at any time.

Key Purposes of a Will in Florida

In Florida, a will is the most straightforward way to ensure your wishes are carried out. A properly executed will allows you to:

1. Direct Asset Distribution – Specify who will inherit your property, including real estate, personal belongings, and financial accounts.
2. Appoint Guardians for Minor Children – Designate a trusted guardian to care for your children if you pass away while they are minors.
3. Express Final Wishes – Include instructions for funeral arrangements or other personal requests.
4. Name a Personal Representative – Choose someone to administer your estate and oversee the probate process.

Why Is a Will Important?

A will ensures that your assets are distributed according to your wishes, not state law. Without a will, Florida’s intestacy laws determine who inherits your property, which may not align with your intentions.

While a will does not avoid probate, it simplifies the process and provides clear guidance for the court and your beneficiaries.

How Wills Work in Florida

In Florida, a will becomes effective only after the testator’s death. The testator, or will creator, retains full control over their assets during their lifetime and can change or update the will at any time.

The Probate Process

When the testator dies, the will goes through probate, a court-supervised process that:

1. Validates the Will – The probate court confirms the will’s authenticity.
2. Manages Debts and Taxes – The personal representative uses the estate to pay outstanding debts and taxes.
3. Distributes Assets – The remaining assets are distributed to the beneficiaries named in the will.

The personal representative, appointed in the will, oversees this process and ensures the testator’s wishes are carried out. While probate can sound complicated, a well-drafted will can make the process smoother and faster.

What Can Be Included in a Will?

In Florida, there are generally no restrictions on what someone can include in their will. A person can decide:

• Who inherits their assets
• How assets are distributed
• Who serves as personal representative

This flexibility allows individuals to direct their estate exactly as they wish.

Common Structure of a Florida Will

A typical will in Florida often includes:

• Naming a spouse as the primary beneficiary and personal representative.
• Dividing all assets equally among children after the second spouse’s death.

This structure simplifies asset distribution and ensures family members are provided for according to the testator’s wishes.

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

For a will to be valid in Florida, it must comply with specific legal requirements under Section 732.502 of the Florida Statutes.

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.

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.