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What If I Die Without a Will in Florida?

If you die without a will in Florida, you die “intestate.” That means the Florida probate court follows state intestacy laws giving your estate to your spouse, children, and family members. For example, if you have a partner and aren’t married or have stepchildren that you haven’t adopted, they do not inherit your estate.

Additionally, you may assume your spouse inherits all your estate, but under intestacy laws in Florida, your spouse may only receive a share of your estate.

What Does a Will Do?

A will contains your instructions on what should happen when you die. Your estate is your real estate and personal property. In your will, you direct:

• Who will manage your estate (your personal representative)
• Who will inherit your real property and personal property (your beneficiaries)
• Who will care for your minor children (a guardian)

Another benefit to having a will is that it speeds up the probate process for your family. Because you specify your wishes, a probate court won’t have to sort it out. You have peace of mind that your family and loved ones are protected.

What Doesn’t a Will Do?

There are certain assets you do not dispose of using a will, such as transfer-on-death bank accounts, retirement accounts or IRAs, and life insurance policies. These accounts transfer with beneficiary designations. Therefore, you should check that you have named a beneficiary and backup beneficiary on all these accounts and policies. If an account or policy has no beneficiary, that asset will go into your estate.

Who Can Make a Will in Florida?

To make a Florida last will and testament, you, as the will maker or “testator,” must be a certain age and are mentally competent to make a will. In Florida, the requirements are:

Age: You must be 18 or older or an emancipated minor to make a will in Florida.

Sound Mind: In Florida, you must have a sound mind at the time you sign your will meaning you understand the following:

• That you are making a will
• What property you own
• Who may be affected by your will (such as your children, spouse, and parents)

If you have concerns about your mental capacity, it is best to talk to an estate planning attorney for legal advice.

Does Florida Have a Statutory Will?

No, Florida does not have a statutory will. To make a will in the state of Florida, you can hire an attorney or create your own will. There are online resources such as FindLaw Legal Forms and Services that help you draft a will in Florida according to Florida laws.

What Types of Wills Does Florida Accept?

There are different ways to make a will, but Florida only accepts certain types of wills. Make sure you are familiar with the types of wills and if Florida accepts them.

• Handwritten Will: A handwritten will (also called a “holographic will”) is typically written entirely in your handwriting and not witnessed. Holographic wills of this kind are not valid in Florida.
• Oral Will: An oral will is one that is spoken to others. Florida does not recognize oral wills as valid, only written wills.
• Electronic Will: In Florida, an electronic will refers to how the will is created, signed, and witnessed. You, as the testator, and your witnesses may sign your will through electronic means using an online notary.

For your will to be valid in Florida, it must be in an acceptable format.

Can I Make My Own Will in Florida?

Yes. Florida residents can create their own will without an attorney. If you know who you want to handle your estate, what assets you have and who you want to receive those assets, you are ready to make a will. The advantage of using an online will drafting service is that it allows you to customize and update your will whenever you want. For example, if you want to change your beneficiaries or guardians, you can easily make a new will without having to amend the will or make a codicil.

How Do I Make My Will Valid in Florida?

You must follow the Florida statutes and laws to make a valid will in Florida. Your will is required to include:

• Signature: You sign the will or direct someone to sign for you in your presence.
• Witnesses: In Florida, when making a will, it’s necessary to have two competent witnesses. These witnesses need to be there at the same time and see the person making the will sign it or confirm that the signature on the will belongs to them. The witnesses should also know that they are signing the will as witnesses for the person making the will. Keep in mind that Florida does not invalidate a will due to interested witnesses, but it is a good practice to use disinterested witnesses wherever possible. An interested witness is a witness who is also a beneficiary under the will or in their estate.
• Notary: There is no requirement to have a notary attest your will to make it valid. However, using an attestation clause or self-proving affidavit is a good practice, which requires a notary’s signature. And, if you are signing electronically, you need an online notary to supervise your signature and your witnesses’ signatures.
• Self-Proving Affidavit: In Florida, you can make your will self-proving by adding an attestation clause. This clause includes a statement that your witnesses sign when you sign your will. The statement confirms that they saw you sign the will, or that you acknowledged your signature on it, and knew that you were signing your will. A notary must sign this affidavit. Why would you want to add this? By adding this clause, your will becomes self-proving, and the probate court won’t require any additional proof that you executed your will correctly. This speeds up probate proceedings.

Can I Disinherit My Spouse in Florida?

You do not have to provide for your spouse in your will. However, if you don’t, your spouse can claim an elective share of your estate, provided they did not waive their right in a premarital agreement. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will. Under Florida law, a surviving spouse may claim an elective share of 30% of your estate.

Can I Disinherit My Children in Florida?

You can disinherit your adult children, meaning age 18 years of age or older, in your will. However, Florida state law allows any pretermitted children (meaning overlooked) to inherit an intestate share, which is what they receive if you died without a will. Therefore, if you want to disinherit a child, you cannot simply leave them out of the will. If you want to disinherit your adult child in Florida, you must specifically do so in your will.

What Estate Planning Documents Should I Have in Florida?

A will is an important legal document to have in place when you die. But there are other critical estate planning documents to protect you and your family members during your life.

• Power of Attorney: If you are suddenly incapacitated, who will handle your financial matters? If you name an agent in a financial power of attorney, they can pay your bills, manage your financial affairs, and provide your family with the resources they need.
• Living Will: In Florida, you can designate a health care surrogate or agent to make medical decisions for you when you can’t. A living will or advance medical directive allows you to specify what life-prolonging measures do (or don’t) want if you face a terminal illness or end-of-life condition. If you don’t make these decisions, the burden is on your loved ones to figure out what you want.

Fortunately, making a will and creating other Florida estate planning documents is easy with online estate planning templates.