Florida law has some basic requirements for a Will to be considered a valid in the State of Florida; without these requirements being met, no Florida probate court judge will admit the Will to probate. This is true no matter how many witnesses come to the judge and explain that the decedent believed the Will to be valid.
Basic Requirements of a Will Under Florida Law
In the State of Florida, a Last Will and Testament, to be legally binding, must meet the following criteria pursuant to Chapter 732 of the Florida Probate Code:
- The person who made the Will must have been at least 18 years old at the time. Only those 18 years of age or older can made valid wills in Florida, unless they have been legally emancipated.
- The Will must be in written. Oral wills (called “nuncupative wills”) are not considered legally valid in Florida.
- The Will must be witnesses by two (2) people. Holographic wills (handwritten, no witnesses) are not recognized in Florida.
- The Will must be signed by the person making the will.
- The witnesses and the maker of the will all have to sign at the same time — they must all see each other signing the document.
- The person must be of sound mind at the time that the will is signed.
Florida Residents From Other States Need to be Aware of Florida Law Regarding Valid Wills
Those who move to Florida from other states, either as full-time retirees, as Snowbirds (part-time residents), investors, etc., may not think that it’s necessary to revisit their Last Will and Testament if they are happy with their dispositions. However, if they come from states where nuncupative wills (oral wills) or holographic wills (handwritten, unwitnessed) are respected, for example, then they need to know that these wills are not recognized in Florida. Their wills need to meet other Florida criteria, as well (including being valid under the laws of the state or country where the will was executed, etc.).
Therefore, for these people, as well as other Floridians, it’s important to have their will drafted and/or reviewed by a Florida lawyer to insure that it is VALID under Florida law so that their property (real estate, personal property, cash) is distributed or disposed of in accordance with their wishes.
Note: the Florida Legislature has made an exception here for military personnel, “[a]ny will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.”
Additionally, Florida Statute 732.502(2) does provide for sister-state reciprocity for written wills originating in other states: “[a]ny will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed.”
Self-Proving Affidavits Under Florida Law
Florida Statute 732.503 provides for the use of “self-proving affidavits.” These affidavits allow the Will to be entered into probate by the Florida Probate Judge without need for an evidentiary hearing to prove that the document is authentic and admissible as the person’s Last Will and Testament (the witnesses to the will don’t have to be tracked down and brought to court to testify, for instance).
(1) A will or codicil executed in conformity with s. 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will, in substantially the following form:
STATE OF FLORIDA
I, , declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
We, and , have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.
Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification and (type or print name of second witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).
(Signature of Officer)
(Print, type, or stamp commissioned name and affix official seal)
Bottom line, if you die without a Last Will and Testament that is recognized as legally valid by Florida law, then it is akin to dying without having any will at all. The document – no matter how official it may appear – will not be respected by a Florida probate court.
What happens if you die without a valid will in the State of Florida? Check out our firm resource page for the answer to that question.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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