What is a Florida last will and testament?

May 7, 2022
What is a Florida last will and testament?

What is a Florida last will and testament?

A will, also called a last will and testament, is used to express a person's wishes for their property and other matters after their death. It is important because it is usually the person's final expression of their wishes and desires on this planet. Therefore, it is important to ensure that the will is valid and complies with Florida law so it will be properly followed, otherwise it is a useless piece of paper.

“The Court will strictly apply the rules for execution of a will.”

Every state has its own legal requirements for a will to be considered valid. In Florida, the following are required:

(1) Writing requirement. For a will to be valid, it must be in writing.  The probate courts in Florida do not recognize oral declarations.  So, last words on a person's deathbed do not count. Also, the writing must be signed in the presence of at least two witnesses with witness signatures at the same time. So, a handwritten or self-typed note without witnesses also does not count and the Court will not consider it.

(2) Competency requirement. The person creating the will, also called the "testator" must be competent to do so, basically meaning they have to understand what they are signing and what the document is doing. Minors cannot execute a will unless they are an emancipated minor.

(3) Testamentary intent. The testator must intend for the document to be a will and intend for it to provide for the disposition of their estate after their death. This is often related to the competency requirement. If the person does not intend for a document to be a "will" then it is legally not a will and the Court will not accept it

(4) Signing requirement. The testator must sign the will for it to be valid.  Specifically, per Florida law, the will must be signed at the end. A testator can make any mark, symbol, or initials but it must be intended to serve as their signature. Additionally, it is a good idea for the person to sign the will in the manner they usually make their signature and not in some other way.

(5) No standard language.  No specific language or magic words are required so long as the individual intends the document to be a will.

(6) Witness requirement. For a will to be valid, it must be witnessed and signed by at least two competent people. Everyone must sign in each other's presence. Any competent adult person can serve as a witness, but it is generally not a good idea for someone receiving something in the will to sign as a witness due to the increased risk of an undue influence challenge.

(7) Amendments. A will can be changed or amended through a document called a codicil. For a codicil to be valid, it must be executed following the same requirements  as a will.

It is important to know that the Florida probate court will strictly apply the will execution requirements. If the will is not executed as specified in Florida law, it will not count and the Court will not consider it at all. It will distribute the estate in accordance with the Florida rules of intestate succession.

Should I use an attorney?

A will is important because it is usually a person's final expression of their wishes.  If it is not properly executed, the Court will not consider it. Additionally, it is important that the will actually does what the individual wants it to do.  There are a lot of complications that can arise and unintended consequences that can result from an improperly drafted will.  There are a lot of DIY options, which may or may not accomplish your goals and may end up costing everyone a lot more in the long run. A vitally important legal document should at the very least be reviewed by a legal professional.

At Jason Quick Law, we are available to help you craft a bespoke estate plan that will accomplish your goals. Our initial consultation is free. We use a modern client portal and online payment options.

A summary:

  • Florida has strict legal requirements for the execution of a will.
  • If a will is not executed properly, it will not be considered in any way.
  • Florida does not recognize oral wills or wills executed without witnesses.
  • The testator must have capacity and testamentary intent.
  • The testator and witnesses all must sign in each other's presence.
  • A will amendment is called a codicil and must meet the same requirements as a will.
  • A will is an important document and mistakes could be costly.
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