Laws on a Last Will & Testament in Florida

by Carrie Ferland

Estate and probate are matters of the state, with each state able to define its own laws governing the process of establishing, executing and probating wills. The state of Florida defines its own laws through two separate codes: the Florida Probate Code and the Florida Probate Rules. If you are a resident, you should take care to review and apply these laws when planning for your own estate’s future to ensure your will is upheld and not set aside during probate.

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Capacity

To execute a will in the state of Florida, you must be at least 18 years of age and of sound mind. A minor who is legally emancipated, either by her own legal marriage, becoming the parent of her own minor child or by legal procedure, is exempt from the age requirement.

Format

To establish a valid will under Florida law, you must execute it in writing, either typewritten or handwritten, bearing the testator’s full legal name, with his signature at the end of the will. Additionally, Florida law expressly recognizes the validity of any will executed as a “military testamentary instrument” pursuant to 10 U.S.C. §1044d. Florida does not recognize the validity of nuncupative (“holographic”) wills, defined as “a will in the testator’s [own] handwriting… [not] executed in accordance with [§732.502(1)(a) of the Florida Statutes].” Nuncupative wills executed in another state are also not valid, even if the original state does acknowledge the will as valid.

Administrators

Florida law grants you the power to appoint at least one administrator in your will to manage, oversee and administer your estate according to your instructions. When doing so, you must state explicitly the role, to whom you are appointing it and what powers you grant to that person. Without this information, Florida will not acknowledge your appointment and will choose an administrator for you following state intestacy guidelines.

Proofing

All wills executed in the state of Florida must be proofed, both by the testator and by at least one additional party. To proof your will, you can submit your will for notarization by a notary public anywhere within the state, at which time you must sign the will yourself in the notary’s presence. You can also seek at least two competent witnesses to watch you sign your will, after which both witnesses must sign the will themselves as well as witness the other witness sign the will. Once your will is proofed, it is fully executed and valid under Florida law.

Witness Capacity

The persons you enlist to help you proof your will must also have the capacity to do so. In general, a person must be at least 18 years of age and of sound mind to stand as a competent witness. While relying on a disinterested witness -- that is, a witness who is not named as a beneficiary and stands to earn no additional benefit from your will -- is preferable, Florida does not immediately void the veracity of a will merely because one or more proofing witnesses held an interest.