Wills & Estates in Florida

by Beverly Bird
Florida's homestead provision ensures that your home will pass to your spouse or children.

Florida's homestead provision ensures that your home will pass to your spouse or children.

Ryan McVay/Digital Vision/Getty Images

Leaving a will ensures that your estate -- the assets you have accumulated during your lifetime -- will pass to the people you choose after your death. Each state has its own laws as to how this process -- called probate -- is done. In Florida, the circuit court oversees probate. Florida exempts some assets from the probate process and protects the rights of some next-of-kin against claims by the deceased’s creditors.

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Making a Will

Florida requires two witnesses to a will, and they must sign it in the presence of the testator, or the person who is leaving the will. The witnesses may also be beneficiaries. You can make a will if you are of sound mind and older than 18. You can also leave a will if you are younger than 18 but emancipated, such as if you are married or have enlisted in the military. If your will is also notarized, it is "self-proving," which means that your witnesses do not have to appear in court after your death to testify to its validity.

Probate

In Florida, the person you choose to oversee the process of distributing your assets to your beneficiaries and making sure all your debts are paid is your “personal administrator.” If your personal administrator is unrelated to you, she must be a Florida resident. Unlike some states, Florida does not make any documents containing the financial information of your estate available for public inspection.

Rights of Creditors

Your personal representative must pay those you owed money to from your estate before your assets are distributed to your beneficiaries, but Florida exempts some of your assets for the benefit of your immediate family before paying creditors’ claims. These include household furnishings up to a total value of $20,000 and two motor vehicles, assuming there are no liens against them. Your personal representative must give your creditors notice that your will is being probated, and they have three months to file a claim for what you owe them. If your personal representative or any of your beneficiaries object to the claim, the creditor must file a lawsuit to get it approved.

Dying Without a Will

If you don’t leave a will, you die "intestate" and Florida law decides who gets your property after your creditors, taxes and expenses -- such as probate fees and funeral costs -- are deducted from your estate. If you are married but have no children, your spouse gets everything that's left over. If you are married and do have children, your spouse and children share your assets, and the circuit court appoints a guardian for your children to oversee their portion if they are minors. If you have no spouse, everything goes to your children, and if you have no spouse or children, your estate passes to more distant relatives. The state inherits your assets if you have no known living relatives at all.

Provisions for Disinheritance

Florida allows you to disinherit anyone except your spouse. If you try to leave your spouse nothing or marry and forget to add him to your will, he still has a right to approximately 30 percent of your assets. You also cannot leave your home to anyone other than your spouse or children if any of them are still living.