Last Will and Testament 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.

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.

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.