Last Will and Testament Requirements in Florida

What Is a Last Will and Testament in Florida?

A Florida last will and testament is a legally binding document that specifies exactly who receives your property after death, who manages your estate during probate, and who cares for your minor children if both parents pass away. Without a properly executed will, Florida’s intestate succession laws—not your wishes—determine how your assets are distributed and who raises your children.

A valid Florida will gives you complete control over your legacy, prevents family disputes over your estate, designates guardians for minor children, and ensures your assets go to the people and causes you care about most. Creating a last will and testament is one of the most important steps in protecting your family’s future.

How Does a Last Will and Testament Work?

A last will and testament in Florida is a written document that provides legally enforceable instructions for distributing your probate assets after death. The will names a personal representative (called an executor in some states) who manages your estate through the probate process, pays final debts and taxes, and distributes assets according to your instructions.

What Assets Does a Florida Will Control?

Your will controls assets that pass through probate, typically property held in your individual name without beneficiary designations or joint ownership. Common probate assets include:

• Real estate titled solely in your name
• Bank accounts in your name alone (without POD or TOD designations)
• Personal property (vehicles, jewelry, furniture, collectibles)
• Business interests held individually
• Investment accounts without beneficiary designations
• Personal belongings and household items

Assets That Pass Outside Your Will

Many assets transfer directly to beneficiaries outside of probate and are not controlled by your will, including:

• Life insurance policies with named beneficiaries
• Retirement accounts (401(k)s, IRAs, pensions) with beneficiary designations
• Transfer on Death (TOD) accounts with named beneficiaries
• Payable on Death (POD) bank accounts
• Jointly owned property with rights of survivorship
• Trust assets held in revocable or irrevocable trusts
• Annuities with beneficiary designations

Understanding this distinction is critical for effective estate planning. Many people mistakenly believe their will controls all their assets, but beneficiary designations and ownership structures often override will provisions.

Beyond Asset Distribution: Naming Guardians

One of the most important functions of a Florida will—especially for parents of minor children—is designating guardians. If both parents die before a child reaches 18, your will specifies who should raise your children. Without this designation, a Florida court decides who becomes guardian, which may not align with your wishes.

The guardian designation in your will is your legal recommendation to the court. While courts give significant weight to parental preferences, they must always act in the child’s best interests. Naming alternate guardians is equally important in case your first choice cannot serve.

Flexibility to Update Your Will

A Florida last will and testament can be created at any age after 18 and can be modified any number of times during your lifetime. Most people update their wills after major life events such as:

• Marriage or divorce
• Birth or adoption of children
• Death of a beneficiary or personal representative
• Significant changes in assets or financial situation
• Moving to Florida from another state
• Changes in relationships with heirs
• Major changes in estate tax laws

The ease of updating your will means you can adapt your estate plan as your life circumstances change.

Requirements for a Valid Will in Florida

Florida law imposes strict formal requirements for a valid last will and testament. Unlike some states, Florida does not recognize informal wills or relax these requirements based on circumstances. Every requirement must be satisfied, or the will is invalid.

The Testator Must Have Capacity

The person creating the will (the testator) must:

• Be at least 18 years old (or an emancipated minor)
• Be of sound mind at the time of execution

“Sound mind” means the testator understands:

• The nature and extent of their property
• Who would naturally inherit from them (family members)
• What a will is and what it does
• How the document affects the disposition of their assets

Contrary to popular belief, advanced age, physical illness, or even some mental impairments don’t automatically disqualify someone from having testamentary capacity. The standard is relatively low—the testator must simply understand what they’re doing when making the will.

The Will Must Be in Writing

Florida requires all wills to be in writing. This writing can be:

• Typed or word-processed (most common)
• Printed from a computer
• Handwritten in its entirety (but still requires witnesses—see below)

The format or medium doesn’t matter as long as the will is written. Oral wills (nuncupative wills) are not valid in Florida, even if spoken in front of witnesses.

The Testator Must Sign at the End

The testator must sign the will at the end of the document. Florida law specifically requires the signature at the “end” to prevent someone from adding provisions after the testator signs.

If the testator physically cannot sign, Florida law allows someone else to sign on their behalf, but this must be:

• Done in the testator’s presence
• Done at the testator’s direction
• Witnessed just like a normal signing

Two Witnesses Must Observe the Signing

This is one of Florida’s most critical will requirements. The will must be signed by the testator in the presence of two attesting witnesses. Both witnesses must:

• Be present at the same time
• Watch the testator sign (or acknowledge their signature)
• Sign the will in the testator’s presence
• Sign in each other’s presence

Florida law does not require witnesses to be disinterested parties. A beneficiary can serve as a witness without invalidating the will, though this is generally not recommended as it can raise questions about undue influence.

Common witness requirement mistakes that invalidate wills:

• Witnesses signing at different times or places
• Testator signing when witnesses aren’t watching
• Only one witness present
• Testator mailing the will to witnesses to sign remotely

Florida Does Not Recognize Holographic or Oral Wills

Holographic wills (entirely handwritten and signed by the testator without witnesses) are invalid in Florida, even if valid where created. Many states allow holographic wills, creating confusion for people moving to Florida.

Oral wills (nuncupative wills) spoken before witnesses are similarly invalid in Florida, regardless of the circumstances. Even “deathbed” oral statements of testamentary intent have no legal effect.

If you have a holographic or oral will and nothing else, Florida law treats you as if you died intestate (without a will), applying default inheritance rules that may not reflect your wishes.

Self-Proving Wills in Florida: Why You Need Them

While not technically required for validity, making your Florida will self-proving is considered essential best practice. A self-proving will significantly streamlines probate administration after your death.

What Is a Self-Proving Affidavit?

Under Florida Statute 732.503, a will becomes self-proving when the testator and both witnesses sign a notarized affidavit confirming:

• The testator’s identity and capacity
• That the testator signed voluntarily
• That all witnesses were present together
• That all formalities were properly followed

The affidavit is typically attached to the will or included on the signature page. A notary public must witness these signatures and affix their seal.

Why Self-Proving Matters

Without a self-proving affidavit, your personal representative must “prove” the will’s validity during probate by:

• Locating the original witnesses (who may have moved, become incapacitated, or died)
• Having witnesses testify under oath about the will’s execution
• Appearing in court or providing depositions

With a self-proving will, the notarized affidavit serves as conclusive evidence of proper execution. The witnesses don’t need to be contacted or testify. Probate proceeds immediately without delay or additional expense.

Given how simple it is to make a will self-proving at execution, there’s no reason not to include this protection. The small additional step at signing prevents significant complications years later.

How to Create a Last Will and Testament in Florida: Step-by-Step

Creating an effective Florida will requires careful consideration of multiple decisions. Follow these essential steps:

Step 1: Choose Your Personal Representative

The personal representative (executor) manages your estate through probate. This person will:

• Locate and secure your assets
• Pay final debts, expenses, and taxes
• Distribute assets to beneficiaries
• File necessary court documents
• Defend the estate against claims
• Manage estate property until distribution

Choose someone who is:

• Trustworthy and financially responsible
• Organized and capable of handling paperwork
• Able to navigate family dynamics diplomatically
• Willing to serve (confirm before naming them)

Florida law requires personal representatives to be either:

• Florida residents (anyone), OR
• If not a Florida resident, your spouse, sibling, parent, child, or other close blood relative

Always name alternate personal representatives in case your first choice cannot or will not serve when the time comes.

You can name co-personal representatives who serve jointly, though this can complicate decision-making. Most people name one primary representative with alternates.

Step 2: Decide on Specific Bequests

Specific bequests are individual gifts of particular property to named beneficiaries:

• “I give my 2020 Honda Accord to my daughter Sarah”
• “I give my diamond engagement ring to my granddaughter Emma”
• “I give $10,000 to my nephew Michael”
• “I give my gun collection to my brother Robert”

When making specific bequests, consider:

Be specific but not too specific. Describing an asset too narrowly can cause problems if you no longer own that exact item at death. Instead of “my Apple MacBook Pro,” consider “my personal computer.”

Account for ademption. If you specifically bequeath an asset you no longer own at death (you sold it, gave it away, or it was destroyed), that gift typically fails. The beneficiary receives nothing instead.

Address tangible personal property broadly. Rather than itemizing every piece of jewelry or furniture, many wills include a separate written memorandum for personal property that can be updated without re-executing the will.

Consider percentage gifts instead of dollar amounts. “$50,000 to charity” may represent your entire estate or just 5% depending on your net worth at death. “10% of my residuary estate to charity” adjusts automatically.

Step 3: Determine Your Residuary Estate Beneficiaries

The residuary estate is everything not distributed through specific bequests—typically the bulk of your estate. Your will should clearly state who receives residuary assets and in what proportions:

• “I give my entire residuary estate to my spouse”
• “I give my residuary estate equally to my three children”
• “I give 60% of my residuary estate to my daughter and 40% to my son”

Always include contingent beneficiaries in case primary beneficiaries die before you or simultaneously with you (such as in a common accident).

Common residuary estate structures:

For married couples: Spouse receives everything; children receive everything if spouse predeceases

For unmarried individuals: Children receive equal shares; if a child predeceases, their share goes to their children (per stirpes distribution)

For those without children: Parents, siblings, or other family members receive designated shares; charitable organizations may receive bequests

Step 4: Name Guardians for Minor Children

If you have children under 18, designating a guardian is arguably the most important provision in your will.

Guardian of the person: Cares for the child’s physical and emotional needs, makes day-to-day decisions, and provides a home

Guardian of the property: Manages assets inherited by the child until they reach adulthood (usually age 18 or 25)

You can name the same person for both roles or separate individuals if appropriate.

Factors to consider when choosing guardians:

• Shared values and parenting philosophy
• Financial stability
• Age and health
• Geographic location
• Relationship with your children
• Willingness to serve
• Family dynamics

Always discuss your decision with proposed guardians before naming them. Ensure they’re willing and able to take on this responsibility.

Name multiple alternate guardians in case your first choices cannot serve. Without guardian designations, Florida courts decide who raises your children based on best interests, which may not align with your preferences.

Step 5: Consider Whether a Will or Living Trust Is Better

Many Floridians today use a living trust instead of (or in addition to) a will. Understanding the differences helps you choose the right approach:

Florida Will Advantages:

• Simpler and less expensive to create
• Easier to execute (just needs signing and witnesses)
• Sufficient for smaller, uncomplicated estates
• Better for naming guardians (primary purpose for young parents)

Living Trust Advantages:

• Avoids probate entirely for trust assets
• Maintains privacy (probate is public record)
• Provides incapacity planning during lifetime
• Allows greater control over timing and conditions of distributions
• May reduce estate administration costs
• Continues managing assets seamlessly after death

Many estate plans use both: a living trust for major assets and a “pour-over will” that transfers any remaining probate assets into the trust at death.

Frequently Asked Questions About Florida Wills

Can you write your own will in Florida?

Yes, Florida residents can write their own wills without hiring an attorney. However, you must still comply with all of Florida’s strict legal requirements: the will must be in writing, signed by you at the end, and witnessed by two people who sign in your presence and each other’s presence. While legal, self-prepared wills carry significant risks of execution errors, ambiguous language, and missing provisions that can create problems during probate or invalidate the will entirely. Most estate planning attorneys recommend having wills professionally prepared to ensure compliance and effectiveness.

How much does a will cost in Florida?

The average cost of having an attorney prepare a will in Florida ranges from $1,000 to $2,500 for a basic estate planning package, which typically includes a last will and testament, durable power of attorney, healthcare surrogate designation, and living will. More comprehensive estate plans involving trusts cost $2,500 to $5,000 or more. Online document services charge $100-$500 but provide no legal advice. While attorney preparation costs more initially, it prevents expensive problems later and ensures your will complies with Florida law and effectively accomplishes your goals.

Are DIY wills valid in Florida?

Yes, do-it-yourself wills are legally valid in Florida if they meet all statutory requirements. There’s no legal requirement to have an attorney draft your will. However, Florida’s will requirements are strict and unforgiving. If you fail to sign the will at the end, don’t have two witnesses present simultaneously, or make other execution errors, the will is invalid—regardless of your intentions. Courts don’t relax the requirements just because you prepared the will yourself. The risk of errors often outweighs the cost savings, especially for estates of any complexity.

Does a will need to be notarized in Florida?

Technically, Florida does not require wills to be notarized for validity. However, notarization is essential for making your will self-proving under Florida Statute 732.503. A self-proving will includes notarized signatures from you and both witnesses on a self-proving affidavit. This simple addition prevents the need to locate witnesses after your death to testify about the will’s execution. Without self-proving provisions, your personal representative must track down witnesses (who may have moved, become incapacitated, or died) and obtain their testimony to admit the will to probate. Always include self-proving affidavit provisions to avoid these complications.

How often should I update my will in Florida?

Review your will every 3-5 years and update it after major life events including marriage, divorce, birth or adoption of children, death of beneficiaries or your personal representative, significant financial changes, moving to Florida from another state, or major tax law changes. Even if your life circumstances haven’t changed dramatically, periodic review ensures your will still reflects your current wishes and complies with current Florida law. Failing to update your will after major life events can result in unintended beneficiaries, outdated guardian designations, or will provisions that no longer make sense.

What happens to my will if I move to Florida from another state?

A will validly executed in another state is generally recognized in Florida, even if it doesn’t meet Florida’s exact requirements. However, moving to Florida creates several estate planning issues you should address: Florida’s homestead laws may affect your property distribution plans, Florida’s intestate succession rules differ from other states, and your will may reference laws or exemptions from your previous state that don’t apply in Florida. Additionally, if your personal representative is not a Florida resident and not a close relative, they won’t qualify to serve. You should have a Florida attorney review your will after moving to ensure it remains effective and accomplishes your goals.

Can I disinherit my spouse in Florida?

No, not entirely. Florida law provides spouses with significant protections that override will provisions. A surviving spouse can elect to take an “elective share” of 30% of the decedent’s estate regardless of what the will says. Additionally, if you live in your homestead property, your spouse has homestead rights that restrict your ability to devise it. You cannot defeat these protections through your will alone. The only way to disinherit a spouse is through a valid prenuptial or postnuptial agreement where the spouse knowingly waives their inheritance rights.

Can I disinherit my children in Florida?

Yes, with some limitations. Unlike spouses, Florida law generally doesn’t require you to leave anything to adult children. You can disinherit children entirely through your will as long as you’re of sound mind and not acting under undue influence. However, you cannot disinherit minor children or children born after your will is executed (pretermitted children) without specifically addressing them in your will. If you want to disinherit a child, explicitly state this in your will rather than simply omitting them—this makes clear the omission was intentional, not an oversight.

What is a pour-over will and do I need one?

A pour-over will is a special type of will used with living trusts. It “catches” any assets not already titled in your trust at death and transfers (“pours”) them into the trust. Even with careful planning, some assets may remain outside your trust—an unexpected inheritance, newly acquired property, or simply items you forgot to transfer. The pour-over will ensures these assets ultimately become part of your trust and are distributed according to the trust’s terms rather than intestate succession rules. If you have a living trust, you should have a pour-over will as a safety net.

Does Florida recognize handwritten wills?

No. Florida does not recognize holographic (entirely handwritten) wills, even if they’re signed and dated. Florida requires all wills to be witnessed by two people who sign in the testator’s presence. A handwritten will without proper witnesses is legally invalid in Florida. Even if you move to Florida with a holographic will that was valid where created, Florida will not honor it. If your only will is holographic, Florida treats you as if you died without a will, applying intestate succession rules. Always ensure your will meets Florida’s execution requirements, regardless of how it’s written.

What is a living will and is it the same as a last will and testament?

No, these are completely different documents. A last will and testament controls asset distribution after death and names guardians for minor children. A living will (advance directive) expresses your wishes about life-prolonging medical treatment if you’re terminally ill or in a persistent vegetative state. The living will tells doctors whether to use artificial life support, feeding tubes, and other measures to prolong life. Comprehensive estate plans include both documents serving different purposes—the last will for after death, the living will for end-of-life medical decisions while still alive.

Can I make a video will in Florida?

No. Florida requires wills to be in writing and signed by the testator in the presence of two witnesses. A video recording of your testamentary wishes has no legal effect in Florida, even if recorded before witnesses. However, video recordings can serve as supplementary evidence in will contests to show testamentary capacity, lack of undue influence, or the testator’s intent. Many attorneys recommend creating videos alongside (not instead of) written wills to document the execution process and the testator’s mental state. But only the properly executed written will has legal effect.