Florida Last Will and Testament: Florida Laws Explained | Martinez Law Estate Planning

Florida Last Will and Testament: Florida Laws Explained

Last Will Testament with Hour Glass

Signing a will offers the opportunity to decide exactly whom and to where our assets will go after death. Based on your desires, creating a will can be very important. If you are gone without having a will, commonly known as dying intestate, your assets will be shared in accordance to a fixed set of rules by the state which basically work down your household by giving precedence to the persons who are closely related to you. These laws are also applicable when a will is discovered to be illegal. Hence, if you are interested in transferring your properties to a friend and not to a member of your family, it is important for you to ensure that:

  1. You created a will; and
  2. The will you have is written properly.

Each state has laws stipulating the necessities for a legal will. State laws regarding wills are rather even all over the country, partly to avoid tampering by inheritors with hidden motives. For example, all states want the individual writing the will to be an adult (officially an adult is typically 18 years or older). In Florida, the law also wants the person writing the will to sign the will in the presence of two or more reliable witnesses. These witnesses are required to sign the will in the presence of the owner of the will, and also in the presence of the other witnesses.

It is important to note that while some states permit oral wills and holographic wills, which is a will written completely with the handwriting of the individual creating the will, but not signed by any witness, the state of Florida doesn’t recognize both types of will.

Creating a Valid Will in Florida

Since a will is a paper that allows you to stipulate what will happen to your assets after you are gone. But, for a will to be implemented, it must be written correctly and in Florida, the person that owns the will is required to follow certain estate planning laws in the state to make sure that his or her requirements are followed.

A Valid Will in Florida Always Requires Witnesses

To make a will valid in Florida, at least two witnesses are needed to sign a will. More witness can be added, but the minimum number of witnesses should be two and these individuals used as witnesses can also be beneficiaries under the will. The will does not have to be endorsed by the witnesses. The person creating the will could just sign and then just declare the contents of the will to the witnesses.

Self-proving Wills in Florida

In Florida, it is possible to self-prove a will, which is a great idea in most cases because it saves a lot of time and energy when the properties in the will need to be probated. In addition, it is a fairly simple thing to do, however, the rules must be followed precisely.

Basically, a self-proof will just need the witnesses and the owner of the will to endorse the will in the presence of each other, and also in the presence of an attorney, after everything has been sworn under oath and after the person creating the will accepts the paper as his/her will and the witnesses accepts that they are witnesses to the will created.

When you do not have a self-proving will, it will be necessary for the witnesses who witnessed the will to present an affidavit to the court asserting that they did witness creation of the will and that the paper was really your will. But, if you have a self-prove will, it won’t be necessary for the witnesses to present an affidavit. If your witnesses are deceased, not available or can’t recall witnessing the will, and you don’t have a self-proving will, it can turn out to be a serious problem.

Changing a Will in Florida

A will can be changed through amendment or making a completely new will, but it should be completed properly in order to preserve the validity of the will. It may be required to implement a codicil before changing a will, which is typically recognized as an amendment to the will, which can be joined with the original will. It is also possible to cancel the whole will and begin over again if desired. It actually depends on the changes to be made. If you’re changing the whole will, it’s really better to make a new will completely. But if you are just willing to change one or two things in the will, then it is more advisable to have a codicil.

Guidelines for Wills in Florida

Many states in the United States, including Florida, directs how a testator may create and implement a will under the Probate Code of the state. These statutory laws determine the procedures for the proofing, contents, and set-up of a legal will. Testators living in Florida who do not follow to these laws while creating a will face the likelihood of having their will partly or completely rejected, which can make some or all of their properties distributed by following the general law of the state.

Conveyance of a Will

It is important to emphasize that the probate law in Florida wants every will created in writing, whether typed or written with hand and endorsed by the creator of the will. Holographic wills, which is written completely with the creator’s handwriting and not witnessed or audiotape wills, oral wills, and videoed wills are not valid according to the law in Florida. Also, unsigned written wills are normally not recognized, apart from some rare cases where the surviving family can prove the testator planned to make the paper as his or her last will and there were urgent situations, stopping the individual from signing the will before to his or her death.

Property Disposal When a Will is Executed

A testator can give any property in which he has an individual, distinct or isolatable interest in any person or party he wants. This includes any physical assets, investments, cash resources, personal property and interest in his possession. A testator can give out his properties by selecting and transferring them directly to his identified beneficiaries, separately, or fix a percentage of his properties to each beneficiary. Any asset not clearly disposed of in the will be a part of the property residue, which is given to the beneficiary named to receive the property residue. If no one is named as a beneficiary, the assets will be with the estate and the executor may sell the assets to cover any money lost while managing the estate.

Will Spousal Rights and Waivers

The probate law in Florida clearly allows a wedded testator to cut off his or her partner as a beneficiary to his or her properties, which can be done by explaining the reason for not naming the other partner as a beneficiary in the will. Though, a testator cannot deny the surviving partner’s right to claim the benefits of any marital assets owned equally by both partners while they were together, such as the matrimonial home, except if the surviving partner chooses to surrender his right to inherit the asset.

Signatures and Witnesses

It is mandatory for the testator to sign the lower part of the will in the presence of at least two witnesses, who should also sign the lower part of the will in the presence of each other and the creator of the will. The law in Florida does not specify any precise requirements for a witness, but the witness must be capable of playing the role of a witness, though precedent states that a witness must be at least fourteen years old. Moreover, Florida does not necessitate that either witness can be disinterested, so an identified beneficiary may confirm the authenticity of a will.

Wills Executed in the Other States

Finally, Florida law recognizes the legitimacy of a will created out-of-state or from another country, as long as the will is valid in the county or state where it was made. But, the state of Florida does not acknowledge the validity of an oral, or nuncupative will created in another state except the will has the signature of two witnesses or more.


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