Florida Wills Laws

Making your last will and testament, or “will” for short, is more than just deciding who gets what when you pass away. It’s about making sure your wishes are actually carried out under the law. Florida probate laws impose strict requirements for a will to be valid, protecting the testator from issues like undue influence. From specific signing formalities to robust spousal and homestead protections, Florida law can override or complicate what might seem like a straightforward estate plan.

If your will doesn’t meet the statutory requirements, either some or all of your estate may pass under the state’s intestacy laws. A carefully prepared will carries out your wishes, protecting your family and loved ones from the potential perils of intestate succession.

A Word on Intestate Succession

Many estate planning attorneys say, “If you don’t have an estate plan, the state has one for you.” This is a warning. Dying without a will is known as dying “intestate.” The state of Florida’s intestate succession laws are the state’s best guess of how most people would want their assets to pass. These laws follow your family tree, looking for your closest relatives. If none are found and your spouse died before you, your estate will pass to your spouse’s family as if your spouse survived you and died intestate. If the state still cannot locate heirs, your estate will escheat to the state of Florida.

This plan means your assets could pass to distant relatives you never knew, to close relatives you chose not to have a relationship with, or to your spouse’s family. It also means that loved ones who were not family members will receive nothing. If you have minor children and no guardian nomination, the probate court will decide who will care for them.

Without a will in place, you’re giving up your power to make the crucial decisions that will have a lifelong impact on your family and loved ones. To make sure your estate goes where you want it to, it’s a good idea to have a will drafted.

How To Make a Will in Florida

If you want to take charge of the future, consider making a will. Your will is the legal document that expresses how you want your assets, such as real estate and personal property, distributed to your beneficiaries after you die. Your will also appoints a personal representative, known as the “executor,” who ensures that your instructions are carried out.

The state does not recognize “holographic” (handwritten and unwitnessed) wills or “nuncupative” (oral) wills. Florida law imposes strict legal requirements for a valid will, as explained below:

Testator Requirements

The “testator” is the person making the will. Under Florida Estates and Trusts law, a testator must be of sound mind and at least 18 years old (or an emancipated minor). The testator must sign the will at the end or direct someone to sign it on their behalf and in their presence.

Witness Requirements

At least two qualified witnesses must sign the will, attesting to the testator’s signing or acknowledgment of the will. This must be done in the presence of each other and in the presence of the testator. A testator‘s handwritten will that has been properly executed is not considered a holographic will.

Self-Proving Wills

Though not required, a will may be made “self-proving” by including statutory form language. A notary public must acknowledge and subscribe the self-proving affidavit. A self-proving will can be admitted to probate without further proof, which can help streamline the probate process.

Providing for Your Spouse

You may not disinherit your spouse under Florida law. Your surviving spouse is entitled to an elective share of 30% of your estate. If your will doesn’t provide your surviving spouse with at least this amount, your surviving spouse can choose to take their elective share instead of what’s written in the will.

Special Homestead Provisions

Florida’s homestead laws offer powerful benefits, including strong creditor protections and valuable property tax savings. These protections also restrict how you can leave your primary residence in your will. In general, you are not free to leave your home to whoever you choose if you have a surviving spouse or a minor child. The homestead protections in Florida’s state constitution create a controlling framework that your will provisions must properly provide for so your estate retains the benefits and protections.

Additional Important Legal Documents

One limitation of a will is that it only takes effect at your death. This means a will doesn’t include any incapacity planning. In addition to a will, a complete estate plan often includes a durable power of attorney for financial matters, along with a health care surrogate designation and living will. With these legal documents in place, you can ensure that your wishes are carried out during incapacity.

Durable Power of Attorney

With a durable power of attorney, you, as the principal, name a trusted person or institution (known as your agent) to step in your place and manage your financial affairs. The state of Florida does not provide a statutory form for a durable power of attorney. Durability language is essential so that the authority survives your incapacity. Without it, your incapacity would terminate the power of attorney. For a power of attorney to be durable in Florida, it must include language such as: “this durable power of attorney is not terminated by subsequent incapacity of the principal.”

Unlike some states, Florida doesn’t recognize a springing power of attorney, which only comes into effect when the principal becomes incapacitated. Instead, a Florida durable power of attorney is effective at execution.

Health Care Surrogate Designation and Living Will

A living will and a health care surrogate designation work together to direct and empower your medical decision-making during incapacity. Your living will directs how you want your medical care managed. The requirements for a Florida living will are met by the sample living will provided in Florida Statutes. Florida law also provides a Designation of Health Care Surrogate statutory form that you can use to name who will manage your health care decisions during an incapacity.

These legal documents ensure your medical care is managed in the way you’d want when you can’t speak for yourself. They can go a long way toward preventing family conflict at an already challenging time.

How To Create a Will in Florida

While some states provide a fill-in-the-blank statutory will form, Florida is not one of them. If you want to make a simple will yourself, an online estate planning service may suit your needs and guide you through the specific statutory requirements.

How To Revoke or Change Your Will

There are two ways to revoke your will in Florida: by writing or by act. The most common way to revoke a will is to execute a later document (a new will or a codicil) that revokes or amends the prior will. This requires it to either state “I revoke all prior wills,” or include an inconsistent provision in the later document. A testator may revoke a will by physically destroying it (or directing its destruction in the testator’s presence) with the intent, and for the purpose, of revocation.

Get Started Today With a Florida Will Attorney

If your family dynamics are complex, your net worth is high, you own a family business, or you simply want the peace of mind that comes with professional legal advice, you may want to establish an attorney-client relationship with a Florida estate planning attorney. During your consultation, your attorney will take the time to understand your wishes and create an estate plan that ensures your assets are handled according to them.