The basic Florida will requirements are as follows:
- A will executed in Florida must be signed by the testator (or another person at the direction of and in the presence of the testator) at the end of the will.
- The testator’s signing or the testator’s acknowledgement that he has previously signed the will should be attested by at least two witnesses.
- These witnesses have to sign the attestation in the will in the presence of the testator and of each other.
- The testator, at the time of signing of the will, must be of legal age, of sound mind, and not under undue influence, fraud, or duress.
- The witnesses must be at least 14 years old.
A will is a document executed by a person (called a testator) primarily directing the disposition of his property upon his death.
A will, in order to be valid and admitted to probate, should be validly executed in accordance with state law.
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E-wills in Florida
Section 732.522 of the Florida Statutes now recognizes the execution of electronic wills. This requires the use of an electronic signature, must be witnessed through audio-video communication technology, should supervised by a notary public in accordance with Florida Statutes 117.28, and must follow the rules for online notarization under Florida Statutes 117.265. The electronic will must be kept safe by a qualified custodian.
A qualified custodian of an electronic will is someone who is domiciled in and a resident of Florida or is incorporated or organized in Florida; consistently employs a system for maintaining custody of electronic records and stores electronic records containing electronic wills under the system; and furnishes for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
A will from out of state is allowed
In Florida, except for holographic and nuncupative (oral) wills, wills executed out-of-state are still recognized as valid in-state, if it followed all the formalities of the law of the state where the will was executed. Florida Statutes 732.502(1)(c)(2).
Revocation of wills
A will can be revoked by the physical destruction of the will or the execution of a codicil revoking the previous will or parts of it. In order to be valid, a codicil should be executed with the same formalities as a will. Florida Statutes 732.502(5).
Probate of Wills
A will does not take effect unless it is presented to the court for admission to probate. Probate proceedings, although necessary for wills, may be time-consuming, and for some, expensive. For this reason, if one wishes to have his property disposed to his beneficiaries at the quickest possible time, it is important to consult with a Florida estates planning lawyer who has knowledge and understanding of Florida law and can assist in the execution of several documents that can ensure one’s goals of lower costs and fast disposition of property to beneficiaries upon death.
Florida will requirements for witnesses
A Florida will needs to be witnesses by at least two witnesses. Usually, three witnesses are preferred. These witnesses have to sign the attestation in the will in the presence of the testator and of each other.
If the will has a self-proving affidavit, then the witnesses do not need to be in t court to prove the will. A self-proving affidavit does not need the presentation of the witness in the court in order to be admitted to probate. In order for the will to have a self-proving affidavit, the testator must acknowledge the will before a notary, and the witnesses must make affidavits before the notary. The notary will evidence the acknowledgement and affidavits by a certificated attached to the will. The notary’s certificate is proof of the due execution of the will.
Handwritten wills and oral wills do not meet Florida will requirements
As previously mentioned, holographic and nuncupative wills, even if executed in a state where it is allowed, do not meet Florida will requirements and will not be recognized in Florida courts. A holographic will is a will entirely written, dated, and signed by the testator. The only holographic will that can be admitted to probate by Florida courts is a holographic will that is also witnessed and signed by two witnesses. A nuncupative will, on the other hand, is not and will never be recognized by Florida courts. A nuncupative will is an oral will or a will that is recorded on video.
In Bitetzakis v. Bitetzakis, 264 So. 3d 297, 298 (Fla. 2d DCA 2019), the Florida court denied the admission of a will to probate because the testator signed the will with only his first name, when he usually signs with his first and last name. Given the strict formalities do not meet Florida will requirements, it is advisable to secure the services of a Florida lawyer in the execution of a will. Although there are many do-it-yourself websites who can help one in drafting a will, this does not ensure that a will is validly executed.
What happens if you don’t have a will or your will does not meet florida will requirements
When there is no will executed or the will was not properly executed in accordance with the formalities of state law, the decedent’s property will be distributed in accordance with Florida’s intestate laws. Although Florida’s intestate laws vigorously protect family members, it excludes certain people from inheriting such as long-time unmarried partners, stepchildren, and in some cases, natural born children born out of wedlock, depending on the father’s steps taken during his lifetime to recognize the child. For these reasons, if your family circumstances are different and you would like to direct the disposition of your property different from how Florida intestate laws would, it is wiser to execute a will.
Under Florida law, if the deceased died with a spouse but no children or with common children only (with no children from other relationships), the entire estate goes to the surviving spouse.
The surviving spouse gets one-half of the estate of the deceased and the deceas’d’s descendants will share the balance per stirpes if either:
(a) The deceased died with one or more descendants who are not descendants of the surviving spouse; or
(b) The deceased died with shared descendants with the surviving spouse but the surviving spouse also had descendants who are not children of the deceased.
If there is no surviving spouse because the deceased was single, divorced, or widowed at the time of death, the whole estate is shared by the descendants. If there are no descendants, the estate will be shared by the parents. If only one parent is alive, the whole estate goes to that parent. If there is no surviving parent, the whole estate goes to the deceased’s siblings and the descendants of any pre-deceased sibling. If there are no surviving parents or siblings, half of the estate will go to the deceased’s father’s family and the other half to the deceased’s mother’s family in the following manner: (a) first, to the surviving grandparents; (b) if none, to the surviving aunts or uncles or their descendants; (c) if none, to any kin; (d) if none, to the state.
Because of these complicated rules on intestate succession, it is best to plan one’s estate to ensure that the property will go to the preferred party that one seeks to direct their assets upon death.
What happens if someone tries to contest your will
Any interested party, such as a beneficiary or heir, can contest the validity of the will and claim that it does not meet Florida will requirements. Grounds for contesting a will, to name a few, are: (a) lack of proper execution; (b) lack of capacity to execute a will (either the testator is below 18 or was not of sound mind when the will was executed due to disease or medication); (c) the will was revoked or modified; (d) the testator was under undue influence of a beneficiary who substantially inherited from the will; or (e) the will was executed under fraud or duress. The statute of limitations in challenging a will is three months from the date of service of a copy of the notice of administration. Given the very short time to object to a will, it is important to consult immediately with a qualified Florida attorney to ensure that one is represented in order preserve the right to challenge or contest a will.
Don’t make your will without an attorney
Florida will requirements can be difficult to carry out, and for that reason we strongly recommend you make you will at a law office.
An experienced Florida attorney can arrange for the signing of the will with the testator, witnesses, and notary, in order to ensure a valid execution of the will. In addition, drafting a will requires knowledge and understanding of Florida law, the family circumstances of the client, and the list of his properties. A Florida estates planning attorney can educate the client on the type of document that is best to be executed for a particular property. Florida recognizes several estate planning documents such as the flexible irrevocable trust, ladybird deed, and living trusts. These documents can all be used to the client’s advantage, depending on his purpose, goals, and the type of property involved, to ensure lesser costs in the transfer and a more prompt disposition of property upon death.
Should you ever need assistance in drafting a will, contesting a will, or planning your estate upon death, we, at the Law Offices of Albert Goodwin, are here for you. Our lawyer, Albert Goodwin, is licensed to practice in Florida and New York. You can call us at 212-233-1233 or send us an email at [email protected].