Requirements for a Legally Valid Will in Florida

To make sure your estate is handled the way you want it to be after you pass, you need a legally valid will. Drafting one requires more than just writing down how you want your assets distributed.

In Florida, you must follow several specific guidelines for the courts to find the document and its directives legally valid during the probate process. If you understand Florida’s will requirements, you can make sure the courts follow the wishes you laid out in your last will and testament.

Wills and Probate in Florida

If you live in Florida and want to control how your estate and assets are allocated after you pass, you should prepare a will. You aren’t required to have a last will and testament, but without one, the state determines how to distribute your estate and assets. Generally, the state distributes your assets to your closest relatives, like a spouse or children, based on intestate laws. To divide your assets according to your wishes, you must create a personalized will.

You can ensure the legal validity of your will by following all of Florida’s legal requirements. This prevents your will and any modifications from being invalidated and 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 asset allocation 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: Florida probate courts will not accept nuncupative (verbally given) or holographic (handwritten by the testator without a witness’s signature) wills.
  
  

• It is created by a competent person: Anyone 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 are 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. Like the testator, witnesses must be of sound mind for the will to be considered binding.

• It can be amended or revoked: You must be able to create a subsequent will or codicil (a modification to a will) that amends or revokes the original will. If any inconsistency exists 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 include a provision that discourages a person from contesting its terms. Florida courts will not enforce these provisions. However, individuals wishing to contest a will must do so after the testator passes away. Additional Considerations for Wills in Florida

Creating a Will 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 doesn’t require standardized documentation or official terminology in the will to make it valid. As long as you execute the will within Florida law’s required formalities, the will is legally binding.

Florida law only requires notarization of the will if you want to categorize it as self-proving. A self-proving will doesn’t 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, which can speed up the probate process.

Although Florida doesn’t require you to work with an attorney when creating a will, we recommend you seek assistance from a will and probate lawyer. Your lawyer can oversee the process and make sure all elements are clear, consistent, and legally valid.

When Can a Will Be Invalidated? 

A court can only invalidate a last will and testament under certain circumstances, including:

• 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 of unsound 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 a person 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 their actions when they sign the will. This includes knowing what assets they possess, who their assets are going to, who their natural heirs are, and the will’s effect.

• 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 sections of the document intact.

A Legally Valid Florida 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.