A last will and testament is a legal document that outlines how your assets should be handled after you pass away. By creating a will in Florida, you (the testator) get to decide who will manage your estate (your personal representative) and who will look after any minor children (a guardian).
Will v Trust
Florida wills and trusts are both estate planning documents that help make sure your assets go to your chosen heirs. But wills only take effect after you die, whereas trusts manage your assets while you’re still alive. After your death, your personal representative will need to submit your will to probate to ensure your last wishes are carried out.
What are Pour Over Wills in Florida?
Many of the top estate-planning attorneys in Tampa use a Florida Pour-Over Will alongside a revocable, living, or irrevocable trust.
A pour-over will in Florida automatically transfers any assets that need to go through probate into the decedent’s trust when they pass away. Once in the trust, these assets are distributed to the beneficiaries according to the terms of the trust.
If you’re interested in learning more about revocable and irrevocable trusts in Florida, take a look at our Trust Planning article. We break down the different types of trusts and clearly explain the main differences between revocable and irrevocable trusts.
The main difference between a simple will and a pour-over will is their purpose. A simple will is designed to handle your entire estate, typically by leaving everything to your spouse or kids. On the other hand, a pour-over will only serves to transfer assets into your trust, working together with either a Florida revocable living trust or an irrevocable trust.
How to write a last will and testament in Florida
Creating a will while you’re still alive and well can spare your family and loved ones significant stress after your death. Here’s a simple checklist on how to write a will and testament in Florida.
- Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose a personal representative to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage your children’s property.
6. Draft your will.
7. Sign your will in front of witnesses.
8. Store your will safely.
What are the legal requirements for a valid will in Florida?
The following are the requirements for a Florida last will under Part V of Chapter 32 of the Florida Statutes:
- Written Document: The will must be in writing.
- Testator Requirements: The person writing the will (the testator) must be at least 18 years old (or an emancipated minor) and of sound mind.
- Signing requirements: The testator must sign the document at the end, in front of two witnesses.
- Witnesses: Your witnesses can be any generally competent adult. While you can choose beneficiaries as witnesses, it is generally discouraged due to potential conflicts of interest.
- Witness Signatures: The witnesses must sign the will in the presence of the testator, after watching the testator sign.
Under Florida will requirements, for an electronic will (eWill) to be valid, you and your witnesses must sign the will in front of a notary public. Additionally, you must provide both the eWill and the recorded notary session to a qualified custodian.
Does a will need to be notarized to make it valid?
A last will and testament does not need to be notarized to make it a legal will in Florida. However, you can make your will “self-proving,” for which you must go to a notary. A self-proving will speeds up the probate process because the court can accept the will without having to contact the witnesses who signed it.
How to Select a Personal Representative for Your Florida Estate?
The personal representative(PA) is the person appointed to handle the probate administration of your estate. But who gets to be the personal representative in probate process?
Florida law allows anyone who is at least 18 years old and a resident of Florida at the time of the decedent’s death or, regardless of residence, your spouse, sibling, parent, child, or other close relative to serve as a PA.
In Florida, there’s also an order of preference in appointment of personal representative that depends on whether the decedent had a will or not (Florida Probate Statute 733.301). Understanding this order helps you select a suitable person as a PA for your will.
Order of Preference in appointment of personal representatives Florida:
With a Will:
Nominated Person:
The personal representative you name in your last will and testament must be either a Florida resident or your spouse, sibling, parent, child, or another close relative. The person named in your last will has the first preference to be the personal representative in Florida. If this person is willing and qualified, the court typically cannot appoint someone else as your personal representative. If the nominated person is unavailable, deceased, or unqualified, the alternate person named in the will has preference.
No Nominated Person:
If the will doesn’t name an alternate, the person who petitions to be the personal representative and is selected by a “majority in interest” of the beneficiaries has preference. A “majority in interest” means beneficiaries with a larger share of the estate have more influence. If no one is chosen by the majority, any beneficiary named in the will may have preference.
No Will:
Spouse:
The surviving spouse has the first preference.
Majority in Interest:
If you die without a Florida will, and there’s no spouse, the Florida law allows a personal representative to be selected by a majority in the interest of the beneficiaries.
Closest Relative:
If neither of the above applies, the closest relative in degree has preference.
Court Appointment:
If none of the above steps forward, Florida law provides that any competent person can petition the court to be appointed as the personal representative. Proper notice must be given to those with higher preference. If no one is willing to serve, the court may appoint a court-appointed attorney as the personal representative.
As probate attorneys, we often get asked how to find out if someone has a will. If you’re looking to learn more about locating a loved one’s will or discovering if someone you know left a will, check out our article on how to find a will in Florida without hiring a lawyer.
How Can You Revoke or Change Your Will?
Only a testator can revoke or change a will in Florida. Such revocation must be in writing as required by law (Florida Statutes §732.505). There are two main ways to revoke or change a will:
Writing a New Will (Full Revocation):
Creating a new will has become the preferred method for updating an estate plan. This completely replaces the old will. The new will typically includes a statement like “hereby revoking all previous wills” to ensure clarity.
Amending the Current Will with a Codicil (Partial Revocation):
This involves making changes to the existing will without replacing it entirely. The codicil must follow the same formalities as the original will, including being signed and witnessed.
Can you make your own will?
Yes, you can make your own will in Florida. Florida state does not require you to work with a will attorney.
However, it’s important to note that Florida does not recognize holographic wills—wills that are handwritten and signed by the testator alone.
Such wills are invalid under Florida law and will be treated as if you died without a will. To ensure your will is is a legal will, you must sign it in the presence of two witnesses, who must also sign the will in your presence.
Some people opt not to work with an attorney for various reasons, such as wanting to keep their information private or finding attorney fees too expensive.
While it’s possible to write your own will, doing so can expose you to errors and issues that might make your will legally unenforceable. Therefore, we highly recommend seeking professional estate planning support from an experienced estate planning attorney.
Smith Will and Trust, Estate Planning and Will Attorneys Serving Clients throughout Central Florida
Ready to start your will-based estate plan? At Smith Will and Trust, our estate planning and will attorneys are here to make the process of creating wills simple and straightforward. We are located in Tampa, Florida, and serve clients across Central Florida in areas including Wills, Succession, Probate and Trust Administration, Trust litigation, and Estate Planning. Contact our law office today at (727) 424-1464 or email us at christiansmithlaw@gmail.com to schedule a consultation.