Creating a legal will is a relatively straightforward process. If your will is valid in the state where you create it, it’s legal. Validity involves meeting a series of requirements that can differ by jurisdiction, but those in Florida aren’t particularly complicated.
Basic Will Requirements
Although some states recognize oral or handwritten wills, Florida isn’t one of them. Your will must be printed to be legal. You must be at least 18 years old to write a will unless you become emancipated sooner. You must be of “sound mind.” This means you understand you’re writing a will and relationship with the people to whom you’re giving your property. You know what property you own to give away.
If you have a complicated estate, talk with an attorney before attempting to write a will yourself. You probably won’t invalidate it if you make mistakes regarding its provisions, but errors could throw a monkey wrench into your estate plan. For example, Florida does not allow you to disinherit your spouse -- he’s entitled to 30 percent of your elective estate, which is certain property established by state law. If you don’t bequeath him at least this much, he can petition the court to claim it anyway. The court will give it to him and this might result in your other beneficiaries receiving less than you intended. As for the language and terminology of your will, Florida doesn’t require any particular wording. Don’t forget to name a guardian for your children, if you have any, and a conservator to manage any property you leave them until they reach the age of majority. You should also select a personal representative to handle the probate process.
Witnesses and Signatures
When your will is completed, you must follow certain rules when you sign it or it won’t be valid. Florida law specifies that you must sign at the very end of the document, although if you’re physically incapable of signing, you can ask someone else to do it for you. The person should make a note that he did so at your request. You’ll also need two witnesses to watch you sign, then they must also sign in your presence and in the presence of each other. Your witnesses must be “competent,” meaning they’re of legal age and sufficient mental capacity to testify in court, if necessary, after your death. Florida law doesn’t include any specific rule that your witnesses cannot also be beneficiaries, but using beneficiaries as witnesses can sometimes give rise to a will contest so you might want to ask someone else. Your will doesn’t have to be notarized.
You don’t have to include a self-proving affidavit to make your will legal in Florida, but doing so can make things easier for your personal representative and your loved ones after your death. The affidavit states that you signed your will in the presence of your witnesses. You and your witnesses must all sign it and the document must be notarized. Florida has a statutory form for a self-proving affidavit that you can find on the state’s website. If you neglect to include an affidavit at the same time you sign your will, you can do it later. If you include a self-proving affidavit, your witnesses won’t have to testify that they watched you sign your will.
- Online Sunshine: 2014 Florida Statutes, Title XLII, Chapter 732, Section 732.502 - Execution of Wills
- Living Trust Network: Florida’s Requirements for a Will
- Nolo: Making a Will in Florida
- Da Varona Law: Basic Requirements for a Florida Will
- Online Sunshine: 2014 Florida Statutes, Title XLII, Chapter 732, Probate Code -- Intestate Succession and Wills
- Florida Senate: Title XLII, Chapter 732, Section 503 -- Self-Proof of Will
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.