Basic Requirements for a Florida Will

Creating a will is one of the most important things you can do to make sure that your final wishes are accomplished. Florida has several requirements that must be met in order to have a valid will.

Who Can Create a Florida Will?

In Florida, any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a Florida will.[1]

What are the Legal Requirements to Create a Florida Will?

Florida has several requirements that must be followed in order to have a valid will. First, the will must be in writing. Second, the person who makes or has the will created (the “testator”), must sign the will at the end of the document. Alternatively, the testator’s name must be written at the end of the will by some other person in the testator’s presence and by the testator’s direction.[2] Third, there must be at least two witnesses to the testator’s signing, or that another person has written the testator’s name to the will.[3] While Florida law allows witnesses who may have an interest in the will to serve as witnesses, it is good practice to have non-interested persons serve as witnesses. Further, although not required, it is also a good idea to have the will notarized.

Any will which is executed following these requirements may be made “self-proved.” This is done either at the time of its execution or at any later date by the acknowledgement of the will by the testator and the affidavits of the witnesses, made before a notary, and evidenced by the notary’s certificate attached to or following the will, if it contains the following language:

STATE OF FLORIDA

COUNTY OF __________

I, [testator], declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.

____________________

Testator

We, [witness #1] and [witness #2], have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.

____________________

Witness

____________________

Witness

Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personally known to me or who has produced (state type of identification– __________) as identification, and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who has produced (state type of identification–.) as identification and (type or print name of second witness) who is personally known to me or who has produced (state type of identification–) as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).

(Signature of Notary)

(Print, type, or stamp commissioned name and affix official seal)

Including this language in your will helps create a presumption, if the will is ever challenged, that the will was validly executed.

Other Important Things to Consider for your Florida Will.

No particular form of words is necessary to have a valid Florida will if it is executed with the formalities required by law.[4] If you have minor children, appointing a legal guardian in your will is one of the best decisions you can make. This can be done by simply naming the person who you want to serve as the guardian. It is best to identify all minor children in the will, and your spouse if you are married. The testator should also consider defining what he/she means by children. For example, the will may state “references to this will to my child/children include all children identified herein and any child or children that may subsequently be born out of may marriage to my spouse, or adopted by myself and my spouse.”

A Florida will should also appoint at least one Personal Representative, and an alternate Personal Representative in the event that the first can not server. The Personal Representative is the person/entity that will be responsible for administering your estate. This person is considered a fiduciary, and is held to high legal standards due to the responsibility that is placed upon them. Florida law allows the Personal Representative to receive compensation from the estate for their services. Florida law also requires that a Personal Representative post a bond. The bond may be waived, however, if the testator states in their will that a bond is not required.

Wills Executed By Nonresidents of Florida or as a Military Instrument.

Any will, other than a holographic (a will handwritten and signed by the testator) or nuncupative will (a will that has been delivered orally), executed by a nonresident of Florida is valid in Florida as a will if it is valid under the laws of the state or country where the will was executed. A will which has been signed at the end by the testator or that has the testator’s name written at the end of the will by some other person in the testator’s presence and in the testator’s direction is not considered a holographic will. Further, a military testamentary instrument prepared in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in Florida.

Can a Florida Will be Modified?

A Florida will can be modified. A modification/amendment to a will is referred to as a codicil. All codicils, or amendments to a will, must be executed with the same formalities as a will. [5]

While creating a will may not sound difficult, it is important to speak to an attorney as a will should be part of an estate plan. Having a proper estate plan can help reduce taxes, and avoid certain assets from being placed into the probate courts. If you should need assistance, please contact De Varona law for a free initial consultation. De Varona law is a South Florida law firm that serves Dade, Broward, Palm Beach, and Martin counties.