Understanding the Basics of Florida Wills
A Last Will and Testament is an incredibly important piece of your estate plan. As you probably already know, it directs how your property and other assets will be distributed to your heirs upon your death. Unfortunately, many people don’t understand exactly what constitutes a will. And if your will isn’t legally valid in the state of Florida, it is the same as dying without a will. This means that your property will be distributed via Florida’s intestate succession laws and quite possibly contrary to your wishes.
If you are considering drafting your own will or using a template you obtained on the internet, understanding the basics of what makes a will can help you avoid creating a meaningless document. However, the best way to protect your estate and your family is to work with a lawyer who has extensive experience in estate planning law.
Where You Die Determines Where You Will Go to Probate
As an initial matter, you need to understand that where you die will determine where you will go to probate and what laws will apply. This is very important for people who had their wills drafted when they lived out of state before moving to Florida. It is also important for people who may be moving out of Florida in the future. This could also be important if you reside out of state and own property out of Florida. Whatever your situation may be, an experienced estate planning lawyer can review your estate plan to make sure there are no unpleasant surprises.
Requirements for Creating a Will in Florida
On its face, a will is a fairly simple document. Florida law does not require your will to be in any particular form or use any special terminology. Florida law also does not require that you have your will drafted by an attorney. However, Florida law does have several requirements that can render your will invalid if they are not met.
The Will Must Be in Writing
Oral wills or declarations are not enforceable under Florida law.
Requirements for the Testator
In order to create a valid will, the testator (the person who makes and executes a last will and testament) must meet the following requirements:
- They must be 18 or older (or be an emancipated minor); and
- They must be of sound mind.
The age requirement is straightforward and does not require explanation. However, to be considered “of sound mind,” you may at some point need to demonstrate the following:
- That you understand the nature and extent of the property included in your will;
- That you understand who will inherit your property according to the terms of your will;
- That you understand the practical effect of your will.
Disputes concerning the capacity of the testator generally only arise after their death, which is one of the reasons why Florida requires that the will be signed in the presence of two witnesses.
The Will Must Be Signed by the Testator
Even if the will is hand-written, the testator must sign it. The testator can use their initials or any mark, letter, or even a symbol, so long as they intend it to serve as their signature.
As mentioned above, Florida law requires that the will be signed in the presence of two witnesses. The will must also be signed by the witnesses in the presence of the testator. In other words, everyone must sign the will together.
Any competent person can sign the will as a witness, including beneficiaries and relatives. That said, a witness who is also a beneficiary of the will could be problematic in case someone claims that the will is the product of undue influence or that the testator was not of sound mind.
Does it Need to Be Notarized?
You are not required to have your will notarized unless you want it to be “self-proving.” When a will is self-proving, the court will not require testimony from your witnesses when the will is admitted to probate. To make your will self-proving, you and your witnesses must also sign a self-proving affidavit that also must be notarized.
A Valid Will Has Four Components
In summary, to create a valid will in the state of Florida, it must meet the following requirements:
- It is in writing;
- The testator was 18 years old or older and of sound mind;
- The testator signed the will in the presence of two witnesses;
- The two witnesses signed the will in the presence of the testator and each other.
If your will meets those requirements, it will be deemed valid under Florida law.
Seems Simple! But Not So Fast…..
Just because your will is valid under Florida law does not mean that it is immune from being challenged. Especially with self-made wills or online templates, the beneficiaries, creditors, and other parties can still dispute the will without necessarily challenging its validity. For example:
- An heir who has been cut out of the will may claim undue influence
- A beneficiary claims that the will is based upon fraud
- Beneficiaries can claim that the personal representative has breached their fiduciary duty
- A beneficiary can claim that the will was amended
- Beneficiaries may have conflicting interpretations of ambiguous language in the will
A skilled estate planning lawyer can help you by providing knowledgeable guidance and carefully drafting a will that is both clear and consistent with your wishes. The time and money you invest in having a lawyer draft your will could save you and your family thousands of dollars or more in the future.
Contact Ellis Law Group if You Need a Will or Have Questions
Your family’s future is too important to leave up in the air. At Ellis Law Group, we believe that everyone deserves excellent estate planning advice regardless of the size of their estate. Whether you need a will or simply want to discuss whether your current will meets your needs, we can help. Contact us at 561-910-7500 to schedule an appointment with a member of our team today.