Florida Wills Attorney

A last will and testament is one of the most fundamental documents in any estate plan. In Florida, wills are governed primarily by Chapter 732 of the Florida Statutes, known as the Florida Probate Code. Whether you are creating your first will, updating an existing one, or need to understand how a loved one's will affects your rights, the Law Offices of Albert Goodwin, PA can guide you through every step of the process.

What Is a Will Under Florida Law?

Under Florida law, a will is a legal instrument that allows a person (called the "testator") to direct how their property and assets will be distributed after death. A will can also name a personal representative (executor) to administer the estate through the probate process, designate guardians for minor children, create testamentary trusts, and specify other wishes regarding the disposition of the testator's estate.

Florida Statutes Chapter 732 sets forth the rules governing wills, including who may make a will, what formalities must be observed, how wills are interpreted, and what happens when a person dies without a valid will (intestacy). Any person who is 18 years of age or older and is of sound mind may make a will in Florida.

Requirements for a Valid Will in Florida (F.S. § 732.502)

Florida law imposes strict formal requirements for a will to be legally valid. Under Florida Statutes § 732.502, a will must meet all of the following requirements:

• In writing: The will must be in written form. Florida does not recognize oral wills or wills recorded solely in audio or video format.
• Signed by the testator: The testator must sign the will at the end, or the testator's name must be signed by another person in the testator's presence and at the testator's direction if the testator is physically unable to sign.
• Signed by two attesting witnesses: The will must be signed in the presence of the testator and in the presence of each other by at least two attesting witnesses. This means the witnesses must watch the testator sign (or acknowledge the signature) and then sign the will themselves while both the testator and the other witness are present.

Failure to comply with any of these requirements can render the entire will invalid, which would cause the estate to pass under Florida's intestacy statutes or under a prior valid will. Courts in Miami-Dade County and throughout Florida strictly enforce these formalities. If you are concerned about the validity of a will, our attorneys can review the document and advise you on potential will contest issues.

Types of Wills in Florida

Simple Will

A simple will is the most common type of will used in Florida. It directs how assets are to be distributed after death, names a personal representative, and may include provisions for guardianship of minor children. A simple will is appropriate for individuals with straightforward estates and uncomplicated family situations. However, all assets passing through a simple will must go through the Florida probate process.

Pour-Over Will

A pour-over will is used in conjunction with a revocable living trust. The purpose of a pour-over will is to act as a safety net that "pours" any assets not already titled in the name of the trust into the trust upon the testator's death. This ensures that all of the decedent's assets are ultimately distributed according to the terms of the trust. While the assets that pass through the pour-over will still require probate, the pour-over will ensures that nothing falls outside the trust's distribution plan. Pour-over wills are a common component of comprehensive estate planning in Florida.

Joint Wills and Mutual Wills

A joint will is a single document executed by two people, typically spouses, that serves as the will for both parties. While joint wills are technically permitted in Florida, they are generally discouraged by estate planning attorneys because they create significant complications. When the first spouse dies, questions arise about whether the surviving spouse can modify or revoke the joint will. Florida courts have grappled with these issues, and the resulting uncertainty makes joint wills a poor choice for most couples. Instead, Florida estate attorneys typically recommend that each spouse execute a separate will.

Self-Proving Affidavit (F.S. § 732.503)

Florida Statutes § 732.503 allows a will to be made "self-proving" at the time of its execution or at any subsequent date. A self-proving will includes a sworn affidavit signed by the testator and the attesting witnesses before a notary public. The affidavit attests that the will was properly executed in accordance with Florida law.

The practical benefit of a self-proving affidavit is significant: during probate, the court can accept the will without requiring the attesting witnesses to appear in court to testify about the will's execution. Without a self-proving affidavit, the personal representative may need to locate the witnesses and have them provide testimony or sworn statements, which can be difficult if the witnesses have moved, become incapacitated, or passed away. For this reason, virtually all wills prepared by experienced Florida estate attorneys include a self-proving affidavit.

What You Can Do with a Will in Florida

A properly executed Florida will allows you to:

• Direct the distribution of your probate assets to specific beneficiaries
• Name a personal representative to administer your estate through the probate process
• Designate a guardian for your minor children
• Create testamentary trusts for minor children, individuals with special needs, or other beneficiaries who should not receive assets outright
• Specify how debts, taxes, and administrative expenses should be paid
• Make specific bequests of particular items of personal property
• Include a no-contest clause (in terrorem clause), although Florida courts may limit their enforceability
• Disinherit certain individuals, subject to Florida's spousal protections

What You Cannot Do with a Will in Florida

Despite the broad authority a will provides, there are important limitations under Florida law:

• You cannot override beneficiary designations: Assets that pass by beneficiary designation (such as life insurance policies, retirement accounts, and payable-on-death bank accounts) are not controlled by your will. These assets pass directly to the named beneficiary regardless of what your will says.
• You cannot disinherit your spouse entirely: Florida provides strong protections for surviving spouses, including the elective share (F.S. § 732.201), which entitles a surviving spouse to 30% of the augmented estate regardless of the will's provisions.
• You cannot freely devise homestead property: Florida's homestead protections impose significant restrictions on how you can distribute your homestead in a will, as discussed in detail below.
• You cannot impose conditions that violate public policy: A will provision that requires a beneficiary to engage in illegal activity, for example, would be unenforceable.
• You cannot avoid probate with a will alone: Unlike a revocable living trust, a will must be admitted to probate to be effective. All assets passing under a will go through the probate process.

Wills Florida Does NOT Recognize

Holographic (Handwritten) Wills

Florida does not recognize holographic wills. A holographic will is a will written entirely in the testator's handwriting that is not witnessed. While some states accept holographic wills, Florida requires that all wills comply with the formal witnessing requirements of F.S. § 732.502. A handwritten document that is not properly witnessed by two attesting witnesses is not a valid will in Florida, regardless of how clearly it expresses the testator's wishes.

There is a limited exception under F.S. § 732.502(2): a will executed in another state in compliance with that state's laws (including holographic will statutes) may be admitted to probate in Florida if it was valid where executed. However, this exception applies only to wills made outside of Florida. A holographic will written by a Florida resident in Florida will not be recognized.

Oral (Nuncupative) Wills

Florida also does not recognize oral or nuncupative wills. An oral statement of testamentary intent, even if made before witnesses or recorded on audio or video, does not constitute a valid will in Florida. The writing requirement under F.S. § 732.502 is absolute, and no exception exists for deathbed declarations or emergency situations. This is an important distinction from states that permit oral wills under limited circumstances.

Revoking or Amending a Will in Florida

Florida law provides several methods for revoking or modifying a will:

Codicils

A codicil is a legal instrument that amends a previously executed will without replacing it entirely. A codicil must be executed with the same formalities as a will under F.S. § 732.502, meaning it must be in writing, signed by the testator, and witnessed by two attesting witnesses. Codicils are useful for making minor changes, such as updating a personal representative designation or modifying a specific bequest. However, for substantial changes, it is generally better to execute a new will entirely.

Revocation by Subsequent Will

A testator may revoke a prior will by executing a new will that expressly revokes all prior wills and codicils. This is the most common and cleanest method of revocation. The new will should contain a clause stating that it revokes all prior wills and codicils, and the testator should take steps to destroy all copies of the prior will to avoid confusion during probate.

Revocation by Physical Destruction

Under F.S. § 732.506, a will may be revoked by the testator or by some other person in the testator's presence and at the testator's direction by burning, tearing, canceling, defacing, obliterating, or destroying the will with the intent to revoke it. The key element is the testator's intent to revoke. Accidental destruction does not constitute revocation, and destruction by someone other than the testator without the testator's presence and direction is ineffective.

Revocation by Operation of Law

Florida law also provides for partial revocation by operation of law in certain circumstances. For example, under F.S. § 732.507(2), if a testator's marriage is dissolved or annulled after the will is executed, all provisions in the will in favor of the former spouse are revoked automatically unless the will expressly provides otherwise.

Florida Wills and Homestead Protection

One of the most complex areas of Florida estate law is the intersection of wills and homestead protection. Florida's constitution provides powerful protections for homestead property, and these protections directly limit what a testator can do with their homestead in a will.

If the decedent is survived by a spouse or minor child, the homestead property cannot be devised freely by will. Under Article X, Section 4 of the Florida Constitution, if the owner is survived by a spouse and no minor children, the homestead may be devised to the spouse but not to anyone else. If the owner is survived by minor children (with or without a surviving spouse), the homestead cannot be devised at all and descends according to Florida's intestacy statutes.

If there is no surviving spouse or minor child, the testator may devise the homestead to anyone they choose. When a surviving spouse exists and the homestead is not devised to the spouse, the surviving spouse has the option of taking a life estate in the homestead with a vested remainder to the decedent's descendants, or taking an undivided one-half interest in the homestead as a tenant in common.

These homestead restrictions frequently lead to disputes during probate, and will provisions that attempt to devise homestead property in violation of these rules will be invalidated. Our attorneys have extensive experience handling homestead issues in Miami-Dade County and throughout South Florida.

Why You Need an Attorney for Your Florida Will

While it may be tempting to use online templates or do-it-yourself will kits, the consequences of an improperly executed will can be devastating for your family. An experienced Florida estate attorney ensures that your will complies with all statutory requirements, addresses complex issues like homestead restrictions and spousal rights, and accurately reflects your wishes. A properly drafted will can also help minimize will contests and disputes among your beneficiaries.

At the Law Offices of Albert Goodwin, PA, we prepare wills and comprehensive estate plans tailored to each client's unique family and financial circumstances. Whether you need a simple will, a pour-over will as part of a trust-based estate plan, or guidance on how to update or revoke an existing will, we can help.

Contact a Florida Wills Attorney

If you need to create a new will, update an existing will, or have questions about a loved one's will, contact the Law Offices of Albert Goodwin, PA. We serve clients throughout Miami-Dade County, Broward County, and Palm Beach County from our office in Coral Gables, Florida.

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. We are committed to providing knowledgeable, personalized legal representation for all of your estate planning and probate needs.