Probate & Trust Attorney | Elder Law, P.A

Types of Wills

in Florida

Many people create a will to ensure that their families are safe and protected after their death. While making a will is not a difficult process, it has to meet certain requirements in order to be valid. On the other hand, if a person dies in Florida without a will, then the state will determine how the assets will be distributed. Unfortunately, when courts have to make a decision about the distribution of property, it leaves many people unhappy. To avoid the hassles, it is important to make a clear, valid will that ensures your assets are distributed according to your wishes.

Your Florida Last Will and Testament

 

It is important to know two key terms: testate and intestate. At the time of death, if you have a will, your estate is considered a testate estate. If you do not have a will, it is intestate. The trouble with intestate estates is that the probate process is, usually, much longer and more complex. This can be draining for your beneficiaries, and it can cause quite a bit of delay - and tension.

That said, there are several types of wills - but be aware that not all are considered to be valid in the state of Florida. Some of the wills include the following:

  1. Attested Will.  An attested will is usually written and signed by the testator (or sometimes by a proxy), but this has to be done in the presence of two witnesses. Attested wills are the most common type of recognized last will and testament in Florida.
     

  2. Holographic Will. This is handwritten and only signed by the testator without witnesses. These wills are not legally valid in Florida. 

    There is an important “but”: If the handwritten will is signed and witnessed in the presence of two other individuals it can be valid like an attested will and no longer considered to be holographic.
     

  3. Military Will. This type of will has to be written by an eligible individual according to guidelines set by federal law. The military will has the same formality requirements as an attested will and is valid in Florida.
     

  4. Oral Will. This is one that is made verbally to another individual and is not valid in Florida.
     

  5. Out of State Will. An out-of-state will can be valid in Florida depending on how it was obtained. If the will is in writing, witnessed, and valid in the jurisdiction where it was signed, then it is valid in Florida even if it does not meet all the requirements of the state. If it is not technically valid in the other state, it is not valid in Florida.

What are the requirements for an Attested Will in Florida?

The most common type of valid will and testament in Florida is the attested will, but it has to meet the following requirements:

  1. Written: The will must be in writing; oral wills are not valid.
     

  2. Signature: The will must be signed by the testator at the end. If the testator cannot sign, it may be signed by a proxy but the former has to be present at the time of signing. While only one signature is required at the end, the testator can sign each page. Further, some probate courts have deemed wills to be valid even if the testator accidentally signed in the wrong place.
     

  3. Age: In Florida, the testator must be at least age 18 or be an emancipated minor. Secondly, the individual should have a sound mind, meaning he or she has the ability to reason and be able to come to a rational judgment when dealing with common issues. Note: if the individual is of sound mind but cannot sign (e.g. a stroke interfered with his/her ability to write, he/she may use a thumbprint or other recognized method.
     

  4. Witnesses: To be valid the will must be attested by two competent witnesses who can be any individuals, related or otherwise. 

    In Florida, there is no age requirement for witnesses. However to be a competent witness at the time of will execution 1) one should be able to visually observe the testor sign the will, and, 2) have insight and understanding of the conduct of the testator. The will must be signed in the presence of the two witnesses. The witnesses are not required to read the contents of the will but must sign after the testator has signed. 

 

Testamentary Intent and Capacity

For the will to be valid, the testator must have functioning capacity at the time of will execution- what this means is that the individual should know what he or she is doing at the time of will creation. The written text should be titled a “Will for Mr/Mrs/Ms. So and So.”

Contesting the Will

There are times when a Florida will and testament can be contested on grounds such as forgery, faulty execution, duress, fraud, error, revocation, under the influence, or lacking testamentary intent and/or capacity.  But there is a three-month statute of limitations for contesting the will from the date of service that a copy of the notice is provided to the objecting person.

If the will is contested, the onus is on the presenting individual to establish its validity. If the will is deemed valid, the contesting party then has the burden of proof to show why it should not be admitted to probate. However, if the will is contested on the grounds that the individual lacks capacity, intent, or was unduly influenced, the contesting party only has to establish a presumption of such a deficit in order to return the burden of proof to the testator.

While you can draft your own Florida last will and testament, any error can result in the will being invalid or prolonging the probate process. It is important to seek consultation from a lawyer to assist you with making an ironclad will. Increase your peace of mind, and make sure your wishes will be honored. Contact us today to learn how.
 

  • Facebook
  • Instagram
  • Twitter
  • LinkedIn
Contact Us
301 East Ocean Avenue, Ste. 2
Lantana, FL 33462
(561) 588-7512
(561) 588-5609
Proudly serving Delray Beach, Boca Raton, Boynton Beach, Deerfield Beach, West Palm Beach, Pompano Beach, Fort Lauderdale, Miami and South Florida