In Florida, a last will and testament (commonly known as “will”) is a formal document wherein an individual directs the disposition of his estate after death. A will is an essential resource to designate the person who will act as a personal representative once the estate owner is deceased.
Besides, a will can be used to designate the guardian of minor children in case of a parent’s death and there is no surviving biological/adoptive parent.
In this article, we will provide you a full guide on how to write a last will and testament in Florida.
Last Will and Testament – Legal Procedures
In Florida, a last will and testament will be administered through probate, a legal proceeding which will pay the decedent’s creditors and distribute the decedent’s estate to the beneficiaries/heirs named in the will.
While drafting a last will, the person will name its personal representative. The personal representative is the legal representative of the decedent, being responsible for administering its estate during probate procedures.
The personal representative is given the authority to:
- ask for information regarding the decedent’s estate,
- bring claims on behalf of the decedent,
- defend against claims of third parties against the probate estate,
- negotiate any debt attached to the decedent’s estate, and
- strike any debt claims that are not valid.
To be a personal representative in Florida, an individual must be either:
- a state resident, or
- the decedent’s spouse, sibling, parent, child, or another close relative (if not a resident).
In case an individual dies without a last will and testament, that person is considered to have died intestate.
Florida law provides about the measures to be adopted in case a person dies intestate in Florida Statute Chapter 732, Part I. In such a case, the law will direct how the decedent’s estate will be divided among its survivors (spouse, children, and other heirs).
How to Determine to Ideal Content of a Last Will and Testament?
Generally, there are no restrictions in terms of what type of provisions someone can write in their will. In Florida, individuals can give what he wants to whom he wants, also choosing the way his/her estate will be distributed after death.
Nonetheless, there are a few exceptions that can invalidate the provisions in a will, such as a bequest conditioned upon race or religious criteria, for instance.
It is crucial to remember that an attorney preparing a last will may not make himself an heir of his client.
Last Will and Testament in Florida- Legal Requirements
The validity of a will in Florida will depend on several requirements. Firstly, the will must be in writing, signed by the person making the will (testator). The will must be signed in the presence of two witnesses and the testator’s signature must be at the end of the will
Also, the two witnesses must sign the will in the presence of the testator and the presence of each other. Any will that does not comply with the rules of signing and witnessing will not be considered valid.
We strongly recommend you do not try to write a will by yourself. Instead, seek guidance with an expert probate attorney in Florida to ensure your will is drafted and executed as provided by Florida law.
Proving the Last Will in Court
After the testator’s death, his/her heirs must prove the will before starting the process of probate, which consists of presenting evidence of the will’s validity to the court.
As provided by Florida Statutes (section 732.503), a will can be made “self-proving”, which means it will not need further authentication in the court to start probate procedures. This way, a self-proving will must be acknowledged by the testator and the two witnesses with a notary.
Notice that a will that is not self-proving is not necessarily invalid.
Why Hire a Probate Attorney in Florida when Drafting a Will?
Many people rely on free templates they find on websites to make a will. Although using a ready-to-use will form found on the internet is cheaper and less time-consuming, it may not necessarily comply with Florida law.
The optimal approach is to hire a probate attorney in Florida to tailor the last will according to each individual’s circumstances.
An expert attorney will help prepare the necessary documentation and suggest which documents are best to implement estate planning.
We Can Help You to Write a Last Will and Testament in Florida
Avoid getting caught up in unexpected situations. At Jurado & Farshchian, P.L., we can help you structure an optimal last will to fulfill your wishes.