Florida Will Requirements

For a will to be legally enforceable in Florida, it must satisfy specific requirements established by the Florida Probate Code. These requirements govern who can make a will, how the will must be executed, and what types of wills Florida courts will recognize. Failing to comply with even one requirement can result in the will being denied admission to probate, potentially causing your estate to pass under Florida's intestacy laws instead of according to your wishes.

Who Can Make a Will in Florida?

Under Florida Statutes Section 732.501, any person who meets the following criteria may make a will:

• Age: The testator must be at least 18 years of age. There is no exception for emancipated minors in Florida's will statute.
• Sound mind: The testator must possess testamentary capacity at the time the will is executed. This means the testator must understand the nature and extent of their property, recognize the natural objects of their bounty (family members and loved ones), understand that they are making a will, and comprehend how these elements relate to form a plan for distributing their estate.

There is no requirement that the testator be a Florida resident to execute a will that complies with Florida law. However, if the testator is domiciled in Florida at the time of death, the will must satisfy Florida's execution requirements or the requirements of the state or country where it was executed.

Formal Execution Requirements Under F.S. Section 732.502

Florida Statutes Section 732.502 establishes the formal requirements that every will executed in Florida must satisfy:

1. Writing Requirement

The will must be in writing. Florida does not accept oral wills (also called nuncupative wills) under any circumstances, even for military personnel or individuals facing imminent death. The written document may be typed, printed, or handwritten, provided it meets all other statutory requirements. However, a handwritten will that is not properly witnessed — a holographic will — is not valid if executed in Florida.

2. Signature of the Testator

The testator must sign the will at its end. The signature may be the testator's full name, initials, or even a mark, so long as it is intended as the testator's signature. If the testator is physically unable to sign, another person may sign on the testator's behalf, but only if all of the following conditions are met:

• The substitute signer acts in the testator's presence;
• The substitute signer acts at the testator's express direction; and
• The testator is aware of and consents to the signing.

3. Attesting Witnesses

The will must be signed in the presence of at least two attesting witnesses. Florida's witness requirements are among the most strictly enforced aspects of will execution:

• The witnesses must be present when the testator signs the will, or the testator must acknowledge a previously made signature to the witnesses;
• Each witness must sign the will in the presence of the testator;
• Each witness must sign in the presence of each other;
• The witnesses must be competent — they must be able to understand what they are witnessing and be capable of testifying about the execution ceremony if called upon during probate.

Florida law does not require that witnesses be "disinterested" (i.e., non-beneficiaries) for the will to be valid. However, under F.S. Section 732.504, if a witness is also a beneficiary under the will and there are fewer than two other disinterested attesting witnesses, the interested witness's bequest may be reduced. Specifically, the interested witness may receive only the amount they would have received if the testator had died intestate or under a prior will, whichever is less. For this reason, it is always advisable to use disinterested witnesses.

The Self-Proving Affidavit

Florida Statutes Section 732.503 authorizes the use of a self-proving affidavit, which is executed simultaneously with the will or at a later date. The affidavit is a sworn statement by the testator and the attesting witnesses, made before a notary public, confirming that:

• The testator declared the instrument to be their last will;
• The testator signed the will voluntarily;
• The testator was of legal age and sound mind at the time of signing; and
• The witnesses signed in the presence of the testator and each other.

A self-proving affidavit is not required for a will to be valid, but it offers substantial practical benefits. When a will is accompanied by a self-proving affidavit, the will can be admitted to probate without the need for witness testimony. Without the affidavit, the personal representative must obtain testimony from at least one attesting witness — or, if no witnesses are available, submit other evidence of proper execution — which can cause delays and added expense in the probate process.

Notarization of a Florida Will

Florida does not require that a will itself be notarized in order to be valid. The notarization requirement applies only to the self-proving affidavit that may accompany the will. A will that is properly signed by the testator and two attesting witnesses is valid even without notarization. However, as discussed above, including a notarized self-proving affidavit streamlines the probate process and is considered best practice for estate planning in Florida.

Types of Wills Recognized in Florida

Florida recognizes several types of wills, each with different rules:

Attested (Formal) Wills

The standard will in Florida is an attested will — a written document signed by the testator and two attesting witnesses in compliance with F.S. Section 732.502. This is the most common type of will used in Miami-Dade County and throughout the state.

Foreign Wills

Under F.S. Section 732.502(2), a will executed by a nonresident of Florida is valid in Florida if it was executed in compliance with the law of the state or country where it was executed, the law of the state or country where the testator was domiciled at the time of execution, or Florida law. This provision is important for individuals who move to Florida from another state and have an existing will. However, it is advisable to have the will reviewed by a Florida attorney to confirm compliance and to ensure it works properly under Florida's probate system.

Holographic Wills

A holographic will is a will written entirely in the testator's handwriting and signed by the testator, but not witnessed. Florida does not recognize holographic wills executed in this state. However, under the foreign wills provision in F.S. Section 732.502(2), a holographic will that was validly executed in a state that recognizes holographic wills may be admitted to probate in Florida.

Electronic Wills

Florida enacted the Electronic Wills Act, effective January 1, 2020, codified in F.S. Sections 732.521 through 732.528. Under this act, a will may be executed, attested, and made self-proving by electronic means, including remote online notarization. An electronic will must be created and stored in an electronic record, signed by the testator with an electronic signature, and witnessed by two persons who each sign with an electronic signature in the presence of the testator and each other. The presence requirement may be satisfied by audio-video communication technology supervised by a notary public authorized to perform remote online notarizations under Florida law.

Oral (Nuncupative) Wills

Florida does not recognize oral wills. A verbal declaration of testamentary intent, regardless of the circumstances under which it is made, has no legal effect in Florida.

Special Considerations for Florida Residents

Homestead Property

Florida's homestead laws impose restrictions on the devise of a homestead property. Under Article X, Section 4 of the Florida Constitution and F.S. Section 732.4015, if the decedent is survived by a spouse or minor child, the homestead property cannot be devised freely — it must pass to the surviving spouse (as a life estate or as tenants in common with the decedent's descendants) unless the spouse has waived their homestead rights. A will that attempts to devise homestead property in violation of these restrictions will be ineffective as to that property.

Elective Share

A surviving spouse has the right to claim an elective share of 30% of the decedent's augmented estate under F.S. Section 732.201, regardless of what the will provides. Estate planning in Florida must account for this right, particularly in second marriages or blended family situations.

Pretermitted Spouse and Children

Under F.S. Section 732.301, a surviving spouse who married the testator after the execution of the will may be entitled to a share of the estate as if the testator had died intestate, unless it appears the omission was intentional or the spouse was provided for by other means. Similarly, F.S. Section 732.302 protects children born or adopted after the will was executed.

Contact a Florida Estate Planning Attorney

Ensuring your will meets all of Florida's legal requirements is essential to protecting your family and your wishes. The attorneys at the Law Offices of Albert Goodwin, PA help clients throughout Miami-Dade County, Coral Gables, and South Florida draft wills that comply with Florida law and serve as the foundation of a comprehensive estate plan.

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.