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Brevard County Florida

Requirements for a Legally Valid Will in Florida

Valid will in Florida

August 18, 2022

Creating a legally valid will is vital to ensuring you have peace of mind regarding your estate after you pass. Drafting a legally valid will requires more than writing out where you want your assets to be distributed upon your death. 

In Florida, your will must follow several guidelines for the courts to find the document and its directives legally valid during the probate process. 

Familiarize yourself with the requirements for legally valid wills in Florida to ensure the courts follow the wishes laid out in your last will and testament. 

Wills and Probate in Florida

Florida residents should prepare a will if they want to control the allocation of their estate and assets after passing. You are not required to have a last will and testament, but without one, it falls to the state to determine how to distribute your estate and assets. 

Generally, the state distributes your assets based on your closest relatives such as your spouse and children through the intestate laws. To divide your assets according to your wishes, you must create a personalized will. Ensuring the legal validity of your will by following all legal requirements in Florida prevents your will and any modifications from being invalidated. It also ensures the court acts according to your wishes. 

As the testator, the person creating the will, you can choose anyone eligible under Florida law to become your estate’s executor, also known as a personal representative. The testator is responsible for directing the allocation of assets and may also set up trusts for asset management. 

In 2019, Governor DeSantis signed the Florida Electronic Wills Act into law, which allows individuals in Florida to execute their will electronically using online notarization legally. 

Individuals considering creating a will electronically should seek assistance from an experienced will and probate attorney before signing the will, as this process requires several specific steps and documents.

Legal Requirements for Wills in Florida 

Every state establishes specific requirements that individuals must follow if they want their will to be legally binding. Under Florida law, a last will and testament is only considered legally binding if it meets the following criteria:  

  • It is in writing: Nuncupative wills (given verbally) or holographic wills (handwritten by the testator without a witness’ signature) will not be accepted as valid by Florida probate courts. 
  • It is created by a competent person: Anyone considered of sound mind is eligible to act as a testator. The testator must understand the will’s nature, extent, and practical effect. Individuals under 18 cannot act as testators unless they qualify as emancipated minors. 
  • It is signed by the testator: Any mark, letter, symbol, or initial can qualify as a signature. 
  • It is signed by and in the presence of at least two witnesses: When each witness signs the will, the testator and the other witness must be present. Witnesses must, like the testator, clearly possess a sound mind for the will to be considered binding. 
  • It can be amended or revoked: Individuals must be able to create a subsequent will or codicil (modifies to a will) that can amend or revoke the original will. If there is any inconsistency between the original will and the codicil, Florida law considers the original will invalid. The addendum must also have the same execution formalities as the original will. 
  • It can be contested: A will cannot enforce any provision that discourages another person from contesting the terms of the will. Florida courts will not enforce such provisions; however, individuals wishing to contest the will must do so after the testator passes away.

Additional Considerations for Wills in Florida

When creating a will in Florida, you can work with a will and probate attorney at Mario Gunde Peters & Kelley to simplify the process. An experienced estate planning attorney at our law firm can help you understand additional considerations for wills in Florida. 

For example, Florida law does not require standardized documentation or official terminology (phrasing, language) in the will to make it valid. As long as the will is executed within Florida law’s required formalities, the will is legally binding. 

Florida law only requires notarization of the will if an individual wishes to categorize the will as self-proving. A self-proving will does not require a witness testimony for probate. In Florida, both the testator and the witnesses must sign a self-proving affidavit which they must then get notarized. You can enter a self-proving will into the probate courts without further proof of authenticity, making them an excellent tool for speeding up the probate process. 

Although Florida does not require you to work with an attorney when creating a will, seeking assistance from a will and probate lawyer is recommended. Your lawyer can oversee the process and make sure all elements are clear, consistent, and legally valid. 

Under What Circumstances Can a Will Be Invalidated? 

Courts can only invalidate a last will and testimony under certain circumstances. These include: 

  • Improper execution: Probate courts may declare a will invalid if it lacks two witness signatures, the testator was under 18, or the person writing the will is declared unsound of mind. 
  • Procured by fraud: If the testator is unaware of what they are signing, or someone intentionally misleads the testator into signing the will, the court may invalidate the will. 
  • Undue influence: If someone puts undue pressure on an individual to include certain words in the will that do not reflect the creator’s wishes, the will may not hold up in court. 
  • Lack of testamentary capacity: Anyone executing a will must understand the actions they are taking by signing the will. This includes knowing what assets they possess, who the assets are going to, who their natural heirs are, and the effect of the will. 
  • Duress: No one can physically threaten or coerce someone to create, witness, or sign a will. 

While any of these factors are grounds to declare a will legally invalid, a minor drafting or execution error may not lead to complete invalidation of the will. If the will contains an error, the probate courts must decide whether or not to declare the will procedurally invalid. 

The court can declare certain portions of the will legally invalid while keeping the remaining valid document sections intact. 

Create a Legally Valid Will 

Whether you are planning for your future by creating a will or undergoing the probate procedure after the passing of a loved one, the wills and probate attorneys of Mario Gunde Peters & Kelley have the knowledge and experience to help you navigate the process. 

We provide thorough will and probate planning services, including last will, living will, health care surrogate, and power of attorney designation. 

Plan and protect your and your family’s future. Contact us 24/7 to set up a free consultation or document review. Same-day appointments are available.

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