Everything You Need to Know About Florida Will

Everything You Need to Know About Florida WillCreating a last Florida will and testament is essential for you to make sure that your cash; real estate, assets and personal properly are distributed according to your wishes after your death. Laws across the states are pretty much the same to prevent anyone from tampering with the wills. The person writing the will, a testator, has the right and opportunity to make sure that their spouse, children, loves ones and even their pets are taken care of after they are gone. Florida law will also allow you to leave your leave your property or gift it to any charitable organization.

Types of Florida Wills Recognized in Florida

There are many types of wills but not all are recognized as a legal Florida last will and testament.

Attested Wills

These are written and signed by either the testator or a proxy approved by the testator. This is done in front of two witnesses. These are the most common and recognized types of Florida living wills and testaments.

Military Wills

These are valid in Florida and contain most of the same conditions as attested wills. They are executed by an eligible person, as per Federal law.

Out-of-state-Wills

Depending on the situation, these wills can be valid in Florida. Even if it does not meet the requirement of Florida last will, it will be valid IF the will is in writing and recognized as valid in the jurisdiction where it was executed.

Holographic Wills

These will are handwritten and signed by the testator but do not have signatures from witnesses. They are not valid in Florida. However, a will that is handwritten by the testator and contains proper signatures from the testator and witness, will be considered an attested will and is therefore not holographic and is valid in the state of Florida.

Oral wills/Nuncupative 

These are not in writing but communicated verbally to another person. They are invalid in Florida.

Florida Will Requirements

The basic requirements that must be fulfilled for a valid Florida last will and testament are as follows:

Age of the testator: the testator has to be at least 18 years old. If not, the testator must be an emancipated minor.

Mental capacity of testator: the testator must of sound mind. This means they should be capable of reasoning and making decisions as the time that the will is being signed.

Signature: the will and testament has to be signed by the testator. If the testator cannot sign his Florida living will, another person may sign on their behalf, in their presence.

Witnesses: two competent and sound witnesses must be present when the testator, or his chosen proxy, signs a Florida last will and testament for it to be recognized as valid. The witnesses then also have to sign the will in front of each other and the testator. These witnesses can also serve as the personal representative of the testator and/or receive something according to the will.

Writing: for wills to be valid in Florida, they have to be written. Handwritten, holographic and oral wills are not accepted or recognized in Florida.

Contesting a Florida Will

Just like a will can be contested in other states, it can also be contested in Florida. There are several grounds on which someone can contest a Florida will and testament. This includes fraud, forgery, duress, execution, mistake, and revocation, lack of testamentary intent or capacity and undue influence. A will cannot be contested whenever someone wants to. It has a statute of limitations of three months. These three months start from the date of service of a copy of the administration on the person contesting the will.

When a will is contested on any of the above mentioned ground, it is the responsibility of the one who is presenting the will to defend and establish the validity of the will. If this representor can prove that the will is valid, then the party that is contesting should not be admitted to probate. However, if the contesting party is doing so on the ground of fraud, undue influence or testamentary capacity, they have to show facts that prove the assumption of existence their alleged ground so that the burden of proof is returned to the proponent.

Changing a Will in Florida

A Florida last will and testament can be changed at any time that the testator wants to do so. But it must be done so correctly and through the right legal process in order to maintain the validity of the will. You can do this through a codicil to change the will. This is basically just an amendment to the will and it is attached to the original will itself. You can make whatever changes you want but if there are too many changes, it is better to just revoke it entirely. This way you can start over again if you want and change everything that was written in the original will. Rather than making changes and amendments to the entire will, it is probably better to create an entire new will. If you are just going to make a few changes, then it is probably a better idea to have codicil.

In case of revoking the will, it can be done so by tearing, burning, canceling or just destroying the will with the intent of revoking the will. This must be done by the testator or by someone else chosen by the testator, in the testator’s presence and at their direction. The testator must of sound mind and not under any duress or undue influence in order for the revoked will to be valid. The same goes for the codicil. The changes must be made by the testator or his chosen proxy, in his presence and by his consent while the testator must of sound mind.

Florida Will Form

If you are looking to make your Florida will and testament, you should contact your family lawyer or talk to a lawyer about the legal process of these things. Even if you don’t have any lawyer involved in the process you should still consult one to make sure you are doing everything by the law. You can also look at some Florida will samples and templates to get an idea of what you are required to do. We will just give you an overview of the Florida will form and show you some of the text that you can expect to see on the will.

The first part of the will is a declaration on your part, along these lines:

I, ___________________, of Miami-Dade in the State of Florida, being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this my Last Will and Testament, hereby revoking any and all Wills or Codicils heretofore made by me.

In Article I, you choose the personal representative of your will and the article further highlights what the duties and responsibilities of the representative are. The Article also allows you to appoint a Substitute Personal Representative if the first one is not available due to some reason or has also passed away after your death.

As per Article II, the personal representative also has to take care of the testator’s debts and funeral expenses. Article III deals with the payments of foreign and/or federal taxes.

Article IV awards the remainder of the testator’s estate and properties and assets to the spouse and/or the children. Article V deals with the any beneficiary of any trust. Article VIII says:

Governing Law. The dispositions made by this Will shall be construed according to the laws of the State of Florida.

Article IX has the signature of testator as well as the signatures of the witnesses and the public notary of the state of Florida. This Article also includes the witnesses’ affidavits. The witnesses’ sign this in the Article:

Signed, published, and acknowledged by ______________________________, as this named person’s Will, in the presence of us, who in this person’s presence and in the presence of each other, and at this person’s request, we have subscribed our names as witnesses this ___ day of ________________, 20____.

You do not need a lawyer to make a will in Florida. You can do it yourself but you must go through the correct legal processes for the will to be valid after your death.

Dying Without a Will in Florida

If you die without a will in Florida, your property shall be distributed according to Florida’s ‘intestacy’ laws. According to these intestacy laws, your property is given to your closest living relatives. This is usually your spouse and children. If you do not have a spouse nor any children, then your parents, or if they are not alive, your grandparents will get your property. This goes on and add increasingly distant relatives such siblings, cousins, aunts, uncles. If you have no absolutely no family left, no distant relatives by blood or marriage that the state can discover, then the state will take your property.

References:

Florida Will Form – https://cdn.formsatlas.com/files/florida-last-will-and-testament-form.pdf

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