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Florida Law Will Requirements

Feb 15, 2022 | Last Will & Testament Legal Blogs | Elder Law P.A

Making the decision to create a Florida Last Will and Testament that is designed to benefit your survivors is not a happy matter to contemplate for many people. Once you understand its importance, however, you will know it is a document that needs to be prepared. Once you have made a will, you can be more at peace, no matter what the future holds.

Florida will requirements include the fact that there are certain criteria that must be met, and they include the following:

  • The individual must be at least 18 years of age or be an emancipated minor; and
  • The individual must be alert and of sound mind; this means the individual must understand the nature and extent of the will.

EXECUTING A WILL

For a Last Will and Testament to be valid in Florida, it has to be executed and witnessed according to Florida laws, which include:

  • The will must be signed at the end of the document in the presence of at least two mentally alert and competent witnesses.
  • The will must be made without any duress, coercion, persuasion and be voluntary.
  • Each of the witnesses must sign the will in the presence of the will-maker (testator) and the other witness.
  • If there are multiple pages, they must be numbered, and each page must be initialized by the will-maker and the two witnesses.
  • The date of the executed will should be so stated.

SELF-PROVING AFFIDAVIT

To speed up the probate process, Florida will requirements provide that you can also create a self-proving affidavit at the same time as the will and add it as an attachment. This is an optional step that protects the will from court challenges, such as validity. A self-proving affidavit is a statement signed by the witnesses that they did visualize the testator sign the will and that he or she was of sound mind. The witnesses are then required to sign their affidavit in the presence of a notary. Thus, when the will goes to probate, the witnesses no longer need to be called, and this can speed up the overall process.

WHAT IS AN ELECTRONIC WILL?

In the era of the internet, Florida does accept an electronic Florida Last Will and Testament. An electronic will is made and stored in an electronic format. The electronic will is also signed electronically. In many cases, the electronic will can dispense with the making of a traditional will, which requires that the will-maker and the two witnesses be physically present in the same location during the signing.

Florida will requirements state that an electronic will in Florida can usually be made by remote online witnessing and notarization. However, Florida has developed laws to protect vulnerable adults. If virtual witnessing is done, the will-maker has to answer certain questions that include: 1) if he or she is under the influence of alcohol or drugs, 2) if he or she requires assistance with daily living activities, and 3) if he/she has any type of long-term disability that impairs daily living activities. If the answer to any of these questions is yes, then an electronic will cannot be made.

WHO CAN BE WITNESSES DURING THE WILL SIGNING?

  1. Under Florida law, anyone over the age of 14 can be a witness to a will.
  2. The witness must be of sound mind.
  3. While you can select anyone to be your witnesses, including your beneficiaries, it is generally recommended that you select third-party individuals who will not benefit from your will.
  4. The will-maker and the two witnesses must be physically present in the room during the signing.

DOES THE WILL NEED TO BE NOTARIZED IN FLORIDA?

A Florida Last Will and Testament does not need to be notarized to be valid. However, if you decide to make a self-proving affidavit, this document needs to be notarized. A self-proving affidavit attached to a will makes the probate process easier because the witness’s testimony is no longer needed to prove the validity of the will. To create a self-proving will, both the will-maker and the witnesses must sign the self-proving affidavit, which simply states that the will is signed by the will-maker. This affidavit must be notarized and attached to the will.

WHO CAN BE THE PERSONAL REPRESENTATIVE?

The personal representative, also known as the executor, is the individual who will manage the estate and carry out the wishes as stated in the will after your death. According to Florida will requirements, the criteria to be a personal representative include the following:

  • Be at least 18 years of age
  • Be alert and mentally sound
  • Be physically able to carry out the duties of an executor
  • Have no prior felony conviction
  • Must be a Florida resident (you can select an out-of-state executor but there is a lot of bureaucracy involved). It is recommended that you choose an executor who lives in Florida.
  • Can be any one of your family members, trusted friend, your lawyer, etc. In general, it has to be someone you can trust and can rely on.

CAN I CHANGE MY WILL IN FLORIDA?

Yes, you are at liberty to make any changes, alterations, or additions to your Florida Last Will and Testament as long as you live.

Florida will requirements state that you can generally revoke, or nullify, your will at any point before you die. There are two main ways you can revoke your will. You can: 1) destroy the will yourself, or 2) ask someone else to do it in front of you.

If you write a second will, then automatically the first will becomes void, but anything left over from the first will, which is not stated in the second will, can be carried over. For example, in your first will, you decide to give your car to your son and the boat to your daughter. In the second will, you only mention the car to your son. By law, the boat will still go to your daughter, according to the first will. Finally, if you make a new will, you should always clearly state that you are revoking any and all old wills and they are not valid.

WHAT IS A CODICIL?

If you want to make minor changes to your will, then a codicil may be the solution. A codicil is a document that you can use to make small changes to an already existing will. It is a legal document, similar to an amendment, that you can just add to your will instead of drafting an entirely new will. The codicil has the same legal requirements as a will. Even if you only make changes to a few words, you are still required to sign it in the presence of two witnesses who cannot be beneficiaries of your will.

A codicil may be appropriate in the following situations:

  • Change the name of a beneficiary, executor
  • Alter specific bequests

For example, if one of your daughters has gotten married and changed her last name, a codicil can be used to change the name.

WHEN TO MAKE A NEW WILL

A codicil is a good idea if you only want to make minor changes to an existing will, but there are times when you want to make major changes to your will. Some scenarios when a new will is recommended include the following.

  • Adding the birth of a child to the will
  • Altering the assets to a beneficiary
  • If you have gotten divorced or married
  • If your residency has changed
  • If someone has died and you want to remove their name as a beneficiary
  • There has been a major change in your estate/assets

In life, things change all the time, and your will should reflect that. Any time you decide to make a new will, remember that you should always destroy the first will and/or add wording to the new will stating that no preceding wills are valid. In addition, notify your executor of any changes to your will.

CONCLUSION

If you are considering making a Florida Last Will and Testament, consult with an attorney who specializes in elder law. While it may be possible to make your own will, if you want to be absolutely rock-solid sure of its legitimacy and accuracy, it is advisable to contact an experienced attorney. Elder Law, P.A. has a staff of lawyers that are knowledgeable about wills, trusts, and many other matters that may come into play as age progresses. Call them today at 1-561-588-7512 to further discuss your options.

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