Rules for Wills in Florida

By Carrie Ferland

The state of Florida governs how a testator may establish and execute a will under the Florida Probate Code. These statutory rules define the guidelines for the format, contents and proofing of a valid will. Testators residing in Florida who do not adhere to these rules while drafting a will face the possibility of having their will partially or entirely voided, which can subject some or all of their estate to state intestate succession guidelines.

Conveyance

Florida probate law requires all wills be executed in writing, whether typed or handwritten, and signed by the testator. Holographic wills -- written entirely in the testator's handwriting and not witnessed -- videotaped wills, audiotape wills and oral wills are not recognized as valid by Florida law. Unsigned written wills are generally not acknowledged, except in rare circumstances where the surviving family can demonstrate the testator intended the document as her final will and there were exigent circumstances preventing her from signing prior to her death.

Property Disposal

A testator can bequeath any assets in which he holds an individual, separate or divisible interest to any individual or entity he sees fit. This includes any real property, personal property, cash assets, investments and interest he may own or hold. A testator can dispose of his assets by identifying and assigning them specifically to his named beneficiaries, individually, or assign a percentage of his assets to each beneficiary. Any property not explicitly disposed of within the will becomes a part of the estate’s residue, which is inherited by the beneficiary assigned to receive the estate’s rest and residue. If there is no assigned beneficiary, the property remains with the estate and the executor may liquidate the property to cover any costs incurred while administering the estate.

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Spousal Rights and Waivers

Florida probate law explicitly permits a married testator to disinherit her spouse as a beneficiary to her estate, which she can do by defining her intention not to provide for her spouse within her will. However, a testator cannot disclaim her surviving spouse’s right to claim his interest in any marital property owned jointly by both spouses during their lifetime, such as the marital home, unless the surviving spouse elected to waive his right to inherit the property.

Signatures and Witnesses

The testator must sign the bottom of the will in the presence of at least two attesting witnesses, who must also sign the bottom of the will in the presence of each other and the testator. Florida law does not define any specific requirements for a capable witness, other than a witness must be “competent” to serve a witness, although precedent defines that a witness must be at least 14 years of age. Additionally, Florida does not require that either witness be disinterested, so a named beneficiary may attest to the veracity of a will.

Wills Executed in Other States

Florida law acknowledges the validity of a will executed out-of-state or outside of the country, provided the will is valid in the state or county where the testator executed it. However, Florida does not recognize the validity of a nuncupative, or oral, will executed out-of-state unless the will bears the signature of at least two witnesses.

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References

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