How to Write a Will in Miami, Florida

Writing a will is one of the most important steps you can take to protect your family and ensure your assets are distributed according to your wishes after your death. In Florida, a will must comply with specific statutory requirements to be legally valid. Understanding these requirements — and the common pitfalls that can render a will unenforceable — is essential for anyone engaged in estate planning in Miami-Dade County or anywhere in the state.

Who Can Make a Will in Florida?

Under Florida Statutes Section 732.501, any person who is 18 years of age or older and of sound mind may make a will. "Sound mind" means the person has testamentary capacity — they understand the nature and extent of their property, know who their natural beneficiaries are, understand that they are making a will, and can form an orderly plan for distributing their assets. There is no requirement that the testator be a Florida resident, but the will must comply with Florida's execution requirements if it is to be probated in this state.

Legal Requirements for a Valid Will in Florida

Florida Statutes Section 732.502 sets out the formal requirements for a valid will. Each requirement must be strictly followed, or the will may be declared invalid during probate.

1. The Will Must Be in Writing

Florida does not recognize oral (nuncupative) wills or holographic wills (handwritten, unwitnessed wills) that were executed in Florida. The will must be a written document. It may be typed or printed — there is no requirement that it be prepared by an attorney, although professional drafting significantly reduces the risk of errors.

2. The Will Must Be Signed by the Testator

The testator must sign the will at the end of the document. If the testator is physically unable to sign, another person may sign on the testator's behalf, but only if they do so in the testator's presence and at the testator's express direction. The signature should appear at the logical end of the will — provisions written below the signature line may not be given legal effect.

3. The Will Must Be Witnessed by Two Persons

The will must be signed in the presence of at least two attesting witnesses. The witnesses must:

Be present when the testator signs the will (or when the testator acknowledges a previously made signature);
Sign the will in the presence of the testator; and
Sign in the presence of each other.

Florida law does not require the witnesses to read the will or know its contents. The witnesses simply attest that the testator signed the document. There is no statutory requirement that witnesses be disinterested (i.e., not beneficiaries), but having a beneficiary serve as a witness can create complications. Under F.S. Section 732.504, if a witness is also a beneficiary, and there are not at least two other disinterested attesting witnesses, the interested witness's bequest may be reduced to what they would have received under intestacy or a prior will.

The Self-Proving Affidavit

While not required for a will to be valid, a self-proving affidavit is strongly recommended. Under F.S. Section 732.503, a self-proving affidavit is a sworn statement signed by the testator and the attesting witnesses before a notary public. The affidavit states under oath that the will was executed in compliance with all legal requirements.

The practical benefit of a self-proving affidavit is significant: it allows the will to be admitted to probate without requiring the attesting witnesses to appear in court and testify about the execution ceremony. This is particularly important if, by the time probate is opened, the witnesses have moved out of state, become incapacitated, or passed away. Without a self-proving affidavit, the personal representative must locate at least one witness to provide testimony — a requirement that can delay the probate process.

What to Include in Your Florida Will

A comprehensive will should address the following:

Identification: Your full legal name, address, and a statement that the document is your last will and testament, revoking all prior wills and codicils.
Appointment of a personal representative: Name the person (or institution) you want to serve as your personal representative (executor) to administer your estate. You should also name an alternate in case your first choice is unable or unwilling to serve. Under F.S. Section 733.304, a personal representative must be either a Florida resident, a spouse, sibling, parent, child, or other close relative of the decedent, or a Florida-qualified trust company or bank.
Distribution of assets: Specify how you want your property distributed. You can make specific bequests (e.g., a particular piece of jewelry to a named individual), general bequests (e.g., a sum of money), and residuary bequests (everything remaining after specific and general bequests are fulfilled).
Guardian for minor children: If you have children under 18, you can nominate a guardian to care for them. While the court makes the final determination, the testator's nomination carries significant weight.
Establishment of trusts: If appropriate, your will can create testamentary trusts — for example, a trust to hold assets for minor children until they reach a specified age.
Powers of the personal representative: You may grant your personal representative specific powers beyond those provided by statute, such as the authority to sell real property without court approval or to continue operating a business.
Tax provisions: For larger estates, the will should address how estate taxes and other death taxes will be apportioned among the beneficiaries.
Simultaneous death provision: A clause addressing what happens if you and a beneficiary die simultaneously or within a short time of each other.

Common Mistakes When Writing a Will in Florida

Even well-intentioned testators can make errors that render their will partially or entirely unenforceable. Common mistakes include:

Failing to update the will after major life events: Marriage, divorce, the birth of a child, or the death of a beneficiary can all affect how your will operates. Under F.S. Section 732.507, a divorce or dissolution of marriage automatically revokes provisions in favor of the former spouse, but other changes may not be automatically addressed.
Using a beneficiary as a witness: As noted above, this can result in the beneficiary's bequest being reduced or eliminated under F.S. Section 732.504.
Failing to include a residuary clause: Without a residuary clause, any assets not specifically bequeathed may pass under Florida's intestacy laws rather than to the person you intended.
Attempting to dispose of non-probate assets: Assets held jointly with right of survivorship, assets with designated beneficiaries (such as life insurance or retirement accounts), and assets in a living trust pass outside of probate and cannot be controlled by a will.
Using ambiguous language: Vague descriptions of property or beneficiaries can lead to disputes and litigation during probate.
Not accounting for Florida's elective share: Under F.S. Section 732.201, a surviving spouse has the right to claim an elective share of 30% of the augmented estate, regardless of what the will provides. Failing to account for this right can create unexpected results.
Using online templates without legal review: Generic online will templates may not comply with Florida-specific requirements or may fail to address important provisions under Florida law.

Should You Use an Attorney to Write Your Will?

Florida law does not require you to hire an attorney to prepare your will. However, the consequences of an improperly drafted or executed will can be severe — including the will being declared invalid entirely, leaving your estate to be distributed under intestacy laws that may not reflect your wishes. An experienced estate planning attorney understands Florida's statutory requirements, can help you avoid common pitfalls, and can ensure your will works in coordination with your other estate planning documents, such as trusts, powers of attorney, and beneficiary designations.

Contact a Miami Estate Planning Attorney

The attorneys at the Law Offices of Albert Goodwin, PA help individuals and families throughout Miami-Dade County and South Florida create wills that protect their loved ones and reflect their true wishes. Whether you are writing a will for the first time or need to update an existing plan, we can guide you through every step of the process.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.