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What Makes a Will Legal in Florida?

On Behalf of | Oct 17, 2023 | Probate

In our practice we are often asked to review a Last Will and Testament as to the validity of the legal document. Of course, creating a legally valid will is a crucial step in securing your assets and ensuring your wishes are carried out after your death. In Florida, there are specific legal requirements that must met to make a will legally binding. A party’s failure to adhere to these rules and requirements may lead to the will being deemed invalid, causing complications for your loved ones. In this blog post, we’ll explore the essential elements that make a will legal in Florida.

Testamentary Capacity

For a will to be considered valid in Florida, the creator of the will must possess the requisite testamentary capacity. In other words, the will’s creator must be of sound mind and at least 18 years old. The creator must also understand the nature and extent of their property, the people they want to include in their will, and the effect of their decisions.

Voluntary and Free Will

A legal will must be created voluntarily and free from any undue influence, duress, or fraud to be valid in Florida. The creator of the will cannot be coerced, tricked, or pressured into making specific provisions in the will.

Proper Execution

Perhaps the biggest mistake we see in the validity of wills is the failure to comply with the execution requirements for a a Florida will. Florida law sets forth specific formalities for executing a valid will.

  1. The will must be in writing, signed by the testator or someone else at their direction in their presence, and signed in the presence of two witnesses. A will that is just notarized and not witnessed by two people is not valid in Florida.
  2. The witnesses must also sign the will in each other’s presence and in the presence of the testator. These witnesses should be disinterested parties who are not beneficiaries of the will. That said, Florida law does not require that the witnesses be disinterested but it is highly advisable to have disinterested witnesses.

Self-Proving Affidavit

Although not legally required, a properly drafted and executed self-proving affidavit can simplify the probate process in Florida. A self-proving will includes an affidavit signed by the testator and the witnesses, affirming that the will was executed correctly. When the time comes to probate the will, the court can accept this affidavit as prima facie evidence of the will’s validity and not require the testimony of the witnesses. The inclusion of a self-proving affidavit in a will can expediate and simply the probate process of admitting a will into probate in Florida.

Inclusion of Beneficiaries and Assets

This may seem obvious, but we have reviewed several wills that failed to set forth the beneficiaries in a clear and proper manner. The will must clearly identify the beneficiaries and specify which assets or properties they are entitled to receive. Wills with ambiguous language may lead to disputes among potential heirs.

It is vitally important to follow Florida law in drafting your will. Working with an experienced attorney who specializes in estate planning in Florida can help you navigate the legal complexities and ensure that your will meets all the necessary legal criteria. If you have any questions, please feel free to reach out to Jason Siegel, Esq. anytime.