Florida Wills: What They Can and Can't Do
A Florida will names who receives your property, who serves as your personal representative, and who you want as guardian of your minor children. It must be signed at the end in front of two witnesses. A will does not avoid probate, and it has no effect while you are living.
What a Florida will can do
- Distribute your property. Say who receives your real estate, money and personal belongings. Without a will, Florida's intestacy statutes decide.
- Name a guardian for minor children. Tell the court who you want to raise your children. We also recommend a separate preneed guardian declaration; see naming guardians.
- Appoint a personal representative. Florida's term for an executor. This person handles your estate through probate.
- Leave gifts to charity. Include the causes that matter to you.
- Pour assets into your trust. A "pour-over" will moves anything left outside your trust into it.
What a Florida will cannot do
- Avoid probate. A will must be admitted to probate before it controls anything. Assets in a trust, jointly owned with survivorship, or with pay-on-death or beneficiary designations pass outside probate.
- Control beneficiary-designated assets. Life insurance, retirement accounts and POD/TOD accounts go to the named beneficiary regardless of your will.
- Plan for incapacity. A will only takes effect at death. You also need a durable power of attorney and health care directives.
- Freely leave your homestead. If you are survived by a spouse or minor child, the Florida Constitution limits how your homestead can pass (Art. X, § 4(c)). This surprises many people who move here from other states.
How a Florida will must be signed
Under Fla. Stat. § 732.502, you sign at the end of the will in the presence of two attesting witnesses, who sign in your presence and each other's. We also make your will "self-proving" with a notarized affidavit (§ 732.503), so your witnesses don't need to be located after your death. Handwritten wills that aren't properly witnessed are not valid in Florida, and neither are oral wills. Florida has allowed electronic wills with remote online notarization since January 1, 2020, with extra safeguards for vulnerable adults.
If you die without a will in Florida
Florida's intestacy law decides who inherits (Fla. Stat. §§ 732.102–732.103). If all of your children are also your surviving spouse's children, and your spouse has no other children, your spouse receives everything. Otherwise your spouse receives half and your descendants share the other half. Without a spouse, your estate passes to your descendants, then parents, then siblings and more distant relatives.
Choosing your personal representative
Anyone who lives in Florida can serve. A person who lives outside Florida can serve only if closely related to you, such as a child, parent, spouse, sibling, aunt, uncle, niece or nephew (Fla. Stat. § 733.304). If your chosen person lives out of state and isn't related, your plan should change.
Getting started with your will
Schedule a free Peace of Mind Estate Planning Strategy Session online, or call 850-607-2222.
Will questions
Does a will have to be notarized in Florida?
No. A Florida will is valid with two witnesses. Adding a notarized self-proving affidavit makes probate simpler, so we include one.
Where should I keep my original will?
Keep it somewhere safe that your personal representative can reach. Florida probate courts generally require the original. Within 10 days of learning of a death, whoever has the original must deposit it with the clerk of court.
How often should I update my will?
Review it every 3 to 5 years, and after marriage, divorce, a birth or death in the family, a move or a major change in assets.