In Florida, when a person dies, any property or assets that were owned by the deceased cannot be legally transferred to anyone without first having to go through a court process called probate. This is true even if the deceased had a will. However, a clear and explicit will allows you to streamline the probate process – at least as much as the courts will allow! Probate ensures that outstanding debts are paid, liens are settled, and assets are distributed appropriately. Now, what are the requirements for a will to be valid in Florida?
Florida Will Requirements
The probate estate can be a complex undertaking depending upon whether the deceased left a clear will and defined the extent and type of property or assets he or she owned. When a will is well executed it makes it easier for the courts to identify all relevant property in the estate and transfer any remaining assets once the probate has been completed. Below are the requirements for a will to be valid in Florida:
- The will must be written. This is the number one requirement; an oral will is not acceptable in Florida under any circumstances. For example, if you tell your child that the home will belong to him after your death, this is not considered to be a valid will. The will can be handwritten or typed.
- If the testator (that is, the one who is leaving the legacy) is unable to make a formal signature (for example, he may have had a stroke), he or she may use any symbol (e.g. thumbprint) or letter to signify his signature.
- The will has to be witnessed by two competent individuals who may or may not be related to the testator. Both the witnesses must also sign the will after the testator has signed. What this means is that all the individuals concerned must be present in the room at the execution of the will. A will is not valid if the testator signs on Monday and the witnesses sign on Tuesday, however the personal representative can be a beneficiary of a will.
- The individual creating the will must sign at the end of the document. If he or she is unable to sign for any reason, a proxy may sign on his/her behalf. However, the signing must be done in the presence of at least two witnesses. While the signature has to be at the end of the document, the testator can sign each of the pages of the will without affecting the validity.
- A will in Florida does not have to be notarized to be valid. However, lawyers recommend that this critical document be notarized at the time of execution. This speeds up the probate process after the death of the testator.
- In Florida, a holographic will (also known as an unwitnessed handwritten will) that is signed by the testator is not accepted. A classic example of a holographic will is when a hiker is lost and writes down on a piece of paper about his wishes regarding his assets after death. This is not a valid will in Florida even if it is created and recognized as a valid will in another state.
Finally, in Florida, any adult person who reaches the age of 18 and is of sound mind can legally create a will. The will can be written in simple English, without legal jargon, as long as the criteria mentioned above are followed. Finally, if the will requires any amendments, it must follow the same protocol as the original execution or it may not be deemed valid after the testator’s death.
If you are considering making a will, to avoid making a mistake, consult with an attorney who specializes in wills. This way, you will ensure that your assets are properly distributed according to your wishes following your death. For more information on the probate process or drafting wills, contact a Florida elder law attorney.
