In Florida, when you pass away, your assets are frozen until the court intervenes for their distribution. Without a valid will, default rules come into play, dictating that your spouse will receive either 100% or 50%, with the remainder allocated to your descendants, or to your immediate family members.
You might encounter an issue if you disagree with these default rules, particularly if you wish to ensure that other people beyond your immediate family members receive a portion of your assets after your passing. While a will may not avoid the probate process, it will ensure that your assets are distributed to specific beneficiaries and can even establish guardianship for any minor children.
Even if life can be unpredictable, your legacy doesn’t have to be. This is why ensuring that your will meets the legal requirements in Florida is essential for distributing your assets according to your wishes. By adhering to these requirements, you can avoid potential challenges and disputes during the probate process. Let’s explore the key requirements for creating a valid will in Florida:
- A written document is essential for a valid will in Florida, as probate courts do not recognize oral declarations (nuncupative wills) or handwritten instructions from a testator without witness signatures (holographic wills).
- The person creating the will must be competent, meaning they must be of sound mind and at least 18 years old unless emancipated.
- The testator must sign the will, and the signature can be in the form of a mark, symbol, letter, or initials, as long as it is intended as the testator’s signature.
- At least two witnesses, who can be anyone competent, including relatives or those benefiting from the will, must sign the document in the presence of the testator and each other. Witnesses cannot sign later, and individuals named in the will should generally not act as witnesses to avoid issues of undue influence.
- Wills in Florida can be amended or revoked through a subsequent will or codicil, which must adhere to the same execution formalities as a will. Formal revocation is not required; inconsistencies in terms can invalidate a previous will.
- It can be contested. Provisions attempting to discourage contests, such as disinheritance penalties, are unenforceable. However, challenges to the will’s validity can only occur after the testator’s death.
- While an attorney is not mandatory for creating a will in Florida, it is recommended to avoid potential issues with online or other non-professional wills. Attorneys can assist in clarifying intentions and ensuring a comprehensive understanding of the entire process, including options like a revocable living trust to bypass probate.
Invalidating a will by the courts is limited to specific circumstances. Fraud, duress, or undue influence can render a will void, but errors in drafting or execution may not be sufficient grounds to invalidate the entire document. Probate courts treat a will as a legal contract, necessitating an assessment of whether the errors are significant enough to declare the will procedurally invalid. Alternatively, the court has the authority to declare specific portions of the will invalid while preserving the rest of the document.
By having a valid will in place, you get to choose how your hard-earned assets will be distributed and ensure that your legacy reflects your values and priorities and will give your loved ones clarity and direction. Ignoring creating a will under Florida requirements may have terrible effects and cause your family members more problems during a hard time. Please give us a call if you need help drafting your will.
