Creating a last will and testament is an important step to make sure your assets, or estate—the real estate, cash, and personal property that you own—are properly distributed after your death. Florida wills give the testator (the person writing the will) the opportunity to make sure their spouse, children, other loved ones, and pets are taken care of. You may also choose to leave property or make gifts to charitable organizations through your Florida will.
In contrast to a last will and testament, a living will provides instructions about your health care should you become incapacitated and incapable of making decisions. A living will, called an “advance directive” under Florida law, would take effect during a person’s life, if necessary, while a last will and testament does not take effect until the person passes away.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine how an estate’s assets are distributed. The outcome under these laws may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a will.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, the person who will be responsible for carrying out the wishes contained in the will, so long as that person is eligible under Florida law. This person is called the executor.
A testator can use a will for various purposes, but the most important is to express how assets such as real estate, vehicles, business holdings, and cash, should be divided upon the testator’s death. A Florida last will also allows the testator to set up a trust for long-term asset management and to name someone to step in as the legal guardian of their children, with some restrictions.
Moreover, In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Florida law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”); such a trust terminates upon the death of the last surviving animal. This trust could be used to pay for a pet or other animal’s upkeep, feeding, and care.
It is important to note that before the terms of a Florida last will and testament can be considered, the will must be proved in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. If a Florida will is self-proving and valid, as described below, it can be immediately admitted to probate.
In order for a Florida will to be self-proving, the testator and witnesses must sign an affidavit, which must also be notarized, proving each participant’s identity and attesting to the fact that each knew they were signing a will.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In Florida, if there are no lineal descendants (parent to child), a surviving spouse will generally take all property of the deceased. However, the law provides for very different results depending on whether there is a surviving spouse, lineal descendants, and whether any surviving lineal descendants are also the offspring of the surviving spouse.
Accordingly, it is crucial that you have a valid Florida will if would like to have control over the distribution of your assets.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed through a Florida will. For example, property that is jointly owned with the right of survivorship cannot be devised by will.
Other restrictions on the ability to distribute property include the following:
- Homestead: Florida’s laws regarding the descent of the family homestead can get complicated, but in general, the surviving spouse takes a “life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death.”
- Disinheritance of spouse: One spouse cannot disinherit the other without a properly executed marital agreement. Florida law provides the option for a spouse to claim an “elective share” under the will or a portion of the decedent’s property.
Form a Last Will in Florida
The basic requirements for a Florida last will and testament include the following:
- Age: The testator must be at least 18 years old or an emancipated minor.
- Capacity: The testator must be of sound mind, which means capable of making decisions and reasoning, at the time the will is signed.
- Signature: The will must be signed by the testator or by another person under his direction and in his presence.
- Witnesses: Two competent witnesses must be present when the testator signs a Florida last will and testament in order for it to be valid. The witnesses must also sign the will in the presence of the testator and of each other. Witnesses may serve as a personal representative and/or receive a device under the will’s provisions.
- Writing: Florida wills must be written. Holographic, or handwritten, wills are not recognized as valid in Florida.
Changing a Florida Last Will and Testament
A Florida last will and testament may be changed whenever the testator wants to do so through the use of a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
The testator must be of sound mind and not under undue influence, duress, or fraud in order for a change in a will to be valid.
Revoking a Florida Last Will and Testament
A Florida will may be revoked at any time by the testator by another written will, codicil, or other writing executed with the same formalities as the will or by an act of “burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation” by the testator or by someone else in the testator's presence and at the testator's direction.