Last Will and Testament in Florida

Frequently Asked Questions Regarding Last Will and Testament

What are the basic legal requirements for a will to be valid in Florida?

For a will to be legally valid in Florida, the maker, or testator, must meet several strict requirements outlined in Florida Statutes S. 732.501. First, the testator must be at least eighteen years of age or an emancipated minor. Crucially, the testator must also be of sound mind, meaning they understand the nature and extent of their property and the effects of signing the document. The will must be in writing, as Florida does not recognize oral or unwitnessed handwritten (holographic) wills. The testator must sign the will at the end of the document, or another person may sign on their behalf in their presence and by their direction. This signing, or the testator's acknowledgment of a previous signature, must occur in the simultaneous presence of at least two attesting witnesses. These two witnesses must then sign the will in the presence of both the testator and each other. While not legally required for validity, a notarized self-proving affidavit simplifies the probate process significantly. Failure to comply strictly with these formal execution requirements can render the entire will invalid.

Can a handwritten will (a holographic will) be valid in Florida?

In Florida, a true holographic will—one that is unwitnessed and entirely in the testator's handwriting—is not valid. Florida law, specifically S. 732.502, demands strict compliance with execution formalities for all wills. The will must be in writing and signed by the testator at the end of the document. Crucially, the testator's signing must be witnessed by at least two attesting individuals. These two witnesses must then sign the document in the presence of both the testator and each other. If a handwritten will meets all of these witnessing requirements, it is then considered a valid written will, not an invalid holographic will. Florida courts will not recognize an unwitnessed handwritten document, even if the intent of the deceased is clear. Furthermore, a holographic will that was validly created in another state may still be invalid for use in Florida probate proceedings. Therefore, to be enforceable in Florida, any handwritten will must be formally executed with the required witnesses.

Who can act as a witness to my will in Florida? Can a beneficiary be a witness?

According to $\text{Florida Statute}\ $ 732.504(1), any person competent to be a witness may act as a witness to a will. Competency generally means the person must be of sound mind, able to understand their duty to tell the truth, and capable of perceiving and remembering the signing event. Florida law does not impose a minimum age, though it is strongly advised to use adults over 18. Crucially, a will is required to be signed by at least two attesting witnesses in the presence of the testator and in the presence of each other. Regarding the question of an interested party, F. S. 732.504(2) explicitly states that a will is not invalid simply because it is signed by an "interested witness," meaning a beneficiary can legally witness the will. However, this practice is strongly discouraged by estate planning professionals. A beneficiary's presence during the signing can create an appearance of "undue influence," making the will easier to challenge in court. Therefore, while legal, using a disinterested witness is the best practice to avoid potential probate litigation and ensure a smooth process.

What assets does a will control, and what assets does it not in the State of Florida?

A will in Florida legally controls only "probate assets," which are those titled solely in the decedent's name at the time of death. These assets, including individually owned real estate, bank accounts without beneficiaries, and personal property, must pass through the court-supervised probate process. The will's primary function is to direct the distribution of these specific assets and to name a personal representative for the estate. Conversely, a will does not control "non-probate assets," which transfer automatically outside of the court system. This non-probate category includes assets with a valid beneficiary designation, such as life insurance policies, IRAs, and 401(k) retirement accounts. Property held with rights of survivorship, like a joint tenancy or tenancy by the entirety for spouses, also bypasses the will, passing directly to the surviving owner. Assets formally placed into a revocable living trust are another major type of non-probate asset, as the trust document governs their distribution. Even the primary Florida residence, if properly classified as protected homestead property, typically passes outside the will to the correct heirs. For a will's terms to take effect on an asset, that asset must first be subject to probate. Effective estate planning in Florida involves coordinating both the will and non-probate transfers to achieve the desired outcome.

In Florida, can I use my will to name a guardian for my minor children?

Yes, under Florida law, a will is a valid and commonly used document to nominate a guardian for your minor children. This nomination, often called a "testamentary guardian," is a powerful expression of your preference for who will care for your child. By naming a guardian in your will, you designate an individual to serve as a Guardian of the Person for day-to-day care and a Guardian of the Property to manage the child’s inheritance. However, the will's nomination is not a guaranteed appointment, as the final decision rests with the Florida probate court. A judge must ultimately confirm the guardian, always prioritizing the minor child's best interests. Your will's designation creates a strong, rebuttable presumption that the named person is the most suitable choice. To provide even stronger legal weight, Florida also allows parents to execute and file a separate Declaration of Preneed Guardian with the Clerk of the Court. Having these designations in place is critical, as it prevents the court from choosing a guardian with no input from the deceased parents.

Last Will and Testament and Estate Planning Lawyers serving Polk County Florida, including: Lakeland, Winter Haven, Bartow, Auburndale, Babson Park, Bowling Green, Bradely Junction, Brewster, Combee Settlement, Crooked Lake Park, Crystal Lake, Cypress Gardens, Davenport, Dundee, Eagle Lake, Fort Meade, Frostproof, Fussels Corner, Gibsonia, Green Pond, Haines City, Highland Park, Highlands City, Hillcrest Heights, Jan Phyl Village, Inwood, Kathleen, Lake Alfred, Lake Hamilton, Lake Wales, Lakeland Highlands, Mulberry, Polk City, Willow Oak, Wahneta, Waverley, Hillsborough County Florida, including: Tampa, Brandon, Plant City, Citrus Park, Temple Terrace, Apollo Beach, Balm, Bealsville, Bloomingdale, Cheval, Dover, Egypt Lake-Leto, Fort Lonesome, Gibsonton, Greater Carrollwood, Greater Sun Center, Gulf City, Hopewell, Keysville, Lake Magdalene, Lithia, Lutz, Mango, Orient Park, Palm River-Clair Mel, Pebble Creek, Progress Village, Riverview, Ruskin, Seffner, Sun City, Thonotosassa, Town 'N Country, Turkey Creek, Valrico, Westchase, Wimauma, Ybor City, Orange County Florida, including: Orlando, Maitland, Apopka, Winter Park, Alafaya, Bay Lake, Belle Isle, Bithlo, Christmas, Doctor Phillips, Eatonville, Edgewood, Fairway Shores, Goldenrod, Gotha, Hunter's Creek, Lake Buena Vista, Lockhart, Meadow Woods, Oakland, Ocoee, Orlovista, Pine Castle, Pine Hills, Southchase, South Apopka, Taft, Tangerine, Union Park, Wedgefield, Williamsburg, Windermere, Winter Garden, Zellwood, Central Florida and throughout the State of Florida.