Wills
A Last Will provides you with peace of mind.
A Last Will is a legal document that states how a person wants their property, money, and belongings (called their “estate”) to be distributed after they die. It can also name a guardian for minor children and appoint someone (called an “executor”) to carry out the instructions in the Will. Having a Will helps make sure that a person’s wishes are followed and can make the legal process easier for their family.
How do you make a Valid Will in Florida?
In Florida, a will must be in writing and signed at the end by the person making the will (or by someone else at the person’s direction and in their presence. Fla. Stat. § 732.502(1)(a). The signing must be signed or acknowledged in the presence of at least two attesting witnesses. Fla. Stat. § 732.502(1)(b). The two attesting witnesses must sign in will in the presence of the will maker and the presence of each other. Fla. Stat. § 732.502(1)(c).
The two witnesses should not be individuals who receive anything under the will. The witnesses should not be the named executor either. The will is not invalid simply because an interested person was witness (Fla. Stat. § 732.504(2)), but it could be harmful in a will challenge.
Does a Will Have to be Notarized?
A Florida will should have a “self-proving affidavit” attached at the end. This is a sworn statement made by the will maker and the two witnesses. A notary administers the required oaths and affixes their signature and notary stamp. The notary cannot be one of the two witnesses because the notary cannot self-administer an oath or notarize their own signature. This means a will signing requires at least three people plus the will maker — two witnesses and a notary.
If a will is not notarized, it is not necessarily invalid. It does, however, require additional “proof” to show it was validly signed. It cannot be admitted as a valid will until the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk. If the witness cannot be located or is incapacitated, the person offering the will has to swear that that the person believes the writing exhibited is the true last will of the decedent.
The probate process is much simpler if a will is self-proven. An attorney-prepared will should be self-proven.
What if I moved from another state?
It would a good idea to make a Florida will if you are a Florida resident. A written will prepared out of state when you were a nonresident, however, is still a valid will if it was valid under the laws of the state or country where the will was executed.
A Will will avoid probate court, right?
NO. A will does not avoid probate. A will is required to be offered and admitted to the probate court where an individual resided at the time of death. The probate process is not inherently “bad” — it is designed to ensure your wishes are followed and protect your beneficiaries. If you are interested in avoiding probate, however, there are probate avoidance options including trusts and lady bird deeds.