A will is the most basic estate planning document you can have and one of the most misunderstood. Many Florida residents assume that having a will means their family avoids the courthouse. Others assume that a handwritten note or a downloaded form is enough. Neither is correct. Florida has specific legal requirements for a will to be valid, and a will that fails those requirements can be thrown out entirely, leaving your family with nothing to go on.
This guide explains exactly what makes a Florida last will and testament valid, what steps are involved in making one, what a self-proving affidavit does, and where a will alone falls short. If you have questions about your own situation, Attorney Yanitza Schoonover offers a free consultation to walk through your options.
What a Will Does and What It Does Not Do
A last will and testament is a legal document that tells a Florida probate court how you want your property distributed after you die, who you want to manage your estate, and if you have minor children who you want to raise them. It speaks at death, not before.
What a will does not do is equally important to understand. A will does not avoid probate. Every will in Florida, without exception, must go through the probate process before your beneficiaries receive anything. If avoiding probate is a priority and for most Florida families with real estate, it is a will alone is not the right tool. A revocable living trust or a Lady Bird Deed is what actually keeps your estate out of court.
A will also does not control everything you own. Assets with named beneficiaries life insurance policies, retirement accounts, bank accounts with pay-on-death designations pass directly to those beneficiaries regardless of what your will says. The same is true for jointly owned property with right of survivorship. Your will only controls what is titled in your name alone with no designated beneficiary.
Florida Will Requirements: What Makes a Will Legally Valid
Florida Statutes §732.502 sets out the requirements for a valid will. Every Florida will requirements checklist starts here:
- Must be in writing. Florida does not recognize oral wills. A video recording of your wishes, by itself, is not a will.
- You must be at least 18 years old (or an emancipated minor).
- You must be of sound mind. Florida law calls this “testamentary capacity.” You must understand the nature of making a will, know the general extent of your property, know who your natural heirs are, and understand how the document distributes your estate.
- You must sign at the end. The testator’s signature must appear at the end of the will. If you cannot sign your own name, you may direct someone else to sign in your presence.
- Two witnesses must sign. Both witnesses must be present when you sign, and they must sign in your presence and in each other’s presence. There is no age requirement for witnesses, but it is best practice to use adults who are not named as beneficiaries in the will.
One thing notably absent from this list: notarization. A will does not need to be notarized to be valid in Florida. However, as explained below, adding a notarized self-proving affidavit at signing is almost always worth doing.
What Florida Does Not Accept
Florida does not recognize holographic wills meaning handwritten wills without witnesses. Even if you write out every detail by hand and sign it, a will with no witnesses is not valid under Florida law. Online will forms can satisfy the technical requirements if properly executed, but many people fill them out and then fail to sign them correctly in front of two witnesses, which defeats the purpose.
What Is a Florida Self-Proving Affidavit?
A Florida self-proving affidavit is a notarized statement signed by you and both of your witnesses at the same time the will is executed. It is attached to the will and becomes part of the document.
When a will is submitted to probate, the court must be satisfied that it was properly signed and witnessed. Without a self-proving affidavit, the court typically requires one or both witnesses to appear and testify which may be difficult or impossible years after the will was signed if a witness has moved, become incapacitated, or died.
A self-proving affidavit eliminates that problem. The notarized affidavit serves as the witnesses’ testimony, and the court can admit the will without calling them in. It is a simple step that takes a few extra minutes at signing and can save your family a significant amount of time and expense down the road.
Florida Statutes §732.503 governs the form and effect of the self-proving affidavit. The language must be exact, which is another reason to have an attorney prepare the documents rather than relying on a generic form.
How to Make a Will in Florida: Step by Step
Step 1: Take Inventory of What You Own
Before you can write a will, you need a clear picture of your estate. Make a list of everything titled in your name alone: real property, bank accounts, investment accounts, vehicles, personal property, and any business interests. This is also the time to note which assets already have beneficiary designations, because those pass outside your will regardless of what it says.
Step 2: Decide Who Gets What
Decide how you want your estate divided. Name primary beneficiaries for each category of assets, and name contingent beneficiaries in case a primary beneficiary does not survive you. If you have minor children, decide at what age if not 18 they should receive an outright distribution, and whether a trust should hold the funds until then.
Step 3: Name a Personal Representative
A personal representative (called an executor in other states) is the person responsible for managing your estate through probate collecting assets, paying debts, filing tax returns, and distributing what remains to your beneficiaries. Choose someone organized and trustworthy. Florida law requires a personal representative to be a Florida resident or a close family member. The same qualities that matter when choosing a successor trustee apply here as well.
Step 4: Name a Guardian for Minor Children
If you have minor children, your will is the only document that lets you name the person you want to raise them if both parents die. This is one of the most important decisions in the entire document. Name an alternate in case your first choice is unable or unwilling to serve.
Step 5: Have the Will Drafted
Whether you use an attorney or prepare the document yourself, the will must comply with Florida Statutes §732.502. An attorney will ensure the language is unambiguous, that the document is properly structured, and that any specific bequests or conditions are legally enforceable. Making a will in Florida is not legally complicated, but the cost of getting it wrong a contested will, an invalid execution, or a probate dispute is almost always higher than the cost of having it done correctly from the start.
Step 6: Execute It Correctly
Sign the will at the end, in the presence of two witnesses, who must sign in your presence and in each other’s presence. All three of you should be physically present together. If you are adding a self-proving affidavit and you should a notary must also be present. The order matters: the witnesses sign after you do.
Step 7: Store It Safely
A will that cannot be found at your death may be treated as if it never existed. Store the original in a fireproof safe, with your attorney, or filed with the circuit court (Florida allows living persons to file their will with the court for a small fee). Tell your personal representative where the original is located. Do not store it in a safe deposit box access can be complicated after death.
Can You Write Your Own Will in Florida?
Yes, Florida law does not require an attorney to draft a will. So can you write your own will? Legally, yes. Practically, it depends on your situation and your willingness to get the execution exactly right.
The most common problems with DIY wills are not in the content they are in the execution. A will that is not signed in front of two properly qualified witnesses, or where the witnesses did not sign in each other’s presence, or where the signature appears somewhere other than the end of the document, can be declared invalid by a Florida probate court. At that point, your estate is treated as if you had no will at all.
DIY wills are also more vulnerable to contests based on undue influence or lack of capacity. When an attorney prepares and supervises the execution of a will, there is a contemporaneous record notes, a consultation, a signed engagement letter that documents your mental state and independent decision-making at the time of signing. That record is one of the most effective defenses against an undue influence claim, which is one of the most common grounds for contesting a will in Florida.
For most people, a simple will package including a durable power of attorney and healthcare documents is a straightforward, flat-fee service. The peace of mind that comes from knowing the documents are legally valid and properly executed is worth more than the cost saved by using a form.
Does a Will Avoid Probate in Florida?
No. This is one of the most common misunderstandings in Florida estate planning. A will does not avoid probate. It is a set of instructions that can only be carried out through the probate process. The personal representative you named in your will must file it with the court, publish a notice to creditors, collect and inventory your assets, pay valid debts, and then distribute what remains all under court supervision.
For many Florida estates, probate is expensive and slow. Attorney’s fees in Florida probate are set by statute and are based on the gross value of the estate not the net. A home worth $500,000 with a $400,000 mortgage still generates fees based on $500,000. Learn more about how to avoid probate in Florida and what tools actually keep your estate out of court.
The two primary probate-avoidance tools are a funded revocable living trust which passes assets to beneficiaries without any court involvement and a Lady Bird Deed for real estate, which transfers your home directly to your named beneficiary at death while leaving you in full control during your lifetime. Both can be used together as part of a complete plan.
What Happens If You Die Without a Will in Florida?
If you die without a valid will in Florida, your estate passes under the state’s intestacy laws Florida Statutes §732.101 through §732.111. The court does not ask what you would have wanted. It applies a fixed set of rules based on your family structure at the time of death. See what happens after someone dies in Florida for a fuller picture of how the process unfolds.
The results of intestacy can be surprising. If you are married with children all from the current marriage, your surviving spouse typically inherits everything. But if you have children from a prior relationship, your spouse and those children share the estate — which can leave a surviving spouse without enough to stay in the family home. Unmarried partners inherit nothing. Stepchildren you raised as your own inherit nothing unless you legally adopted them.
Dying without a will also means the court will appoint a personal representative which may or may not be the person you would have chosen and will decide who raises your minor children if there is no surviving parent. A will is the only document that gives you control over both of those decisions.
When a Will Alone Is Not Enough
A will is a useful document, but it is rarely sufficient as a complete estate plan on its own. Here is when you need more:
- You own real estate. A will puts real estate through probate. A Lady Bird Deed or a trust avoids that entirely.
- You want to protect minor children’s inheritance. A will can name a guardian, but it cannot prevent an 18-year-old from receiving a lump sum. A testamentary trust inside the will, or a standalone revocable trust, can hold funds until the child reaches a more appropriate age.
- You have a blended family. A simple will often fails blended families. If you leave everything to your surviving spouse, your children from a prior relationship may inherit nothing. A trust can protect both.
- You have significant assets or a family member with special needs. These situations call for more specialized planning than a basic will can provide.
- You want to keep your estate private. A will becomes a public record when it is filed with the probate court. A revocable trust is entirely private. See how a revocable trust compares to an irrevocable trust if asset protection is also a concern.
A complete Florida estate plan typically includes a will or trust (or both), a durable power of attorney, a healthcare surrogate designation, and a living will. Attorney Schoonover can review your situation and tell you exactly which documents you need and what each will cost before any work begins.
Frequently Asked Questions
What are the legal requirements for a will in Florida?
A valid Florida will requires the testator to be at least 18 years old and of sound mind, the will must be in writing, the testator must sign at the end of the document, and two witnesses must sign in the testator’s presence and in each other’s presence. Florida does not recognize oral or handwritten (holographic) wills.
Does a will need to be notarized in Florida?
Notarization is not required to make a will valid in Florida. However, a notarized self-proving affidavit attached to the will allows the court to admit the will to probate without calling your witnesses to testify, which simplifies the process for your family.
Can you write your own will in Florida?
Yes, Florida law does not require an attorney to draft a will. However, a DIY will that fails to meet the technical requirements — missing a witness signature, improper execution, or unclear language can be contested or declared invalid. For most people, the cost of having an attorney draft the will is far less than the cost of fixing one that was done incorrectly.
Does a will avoid probate in Florida?
No. A will does not avoid probate in Florida. It is a set of instructions that must be carried out through the court process. To avoid probate, you need a funded revocable living trust, a Lady Bird Deed for real property, or beneficiary designations on accounts.
What is a self-proving affidavit in Florida?
A self-proving affidavit is a notarized statement signed by the testator and both witnesses at the time the will is executed. It tells the probate court that the will was properly signed and witnessed, so the court can admit it without requiring the witnesses to appear and testify years later.
What happens if you die without a will in Florida?
Florida’s intestacy laws determine who inherits your estate. Assets pass to relatives in a specific legal order first to your spouse and children, then to parents, siblings, and so on. Unmarried partners inherit nothing, and blended family situations can produce results far different from what you would have chosen.
What is undue influence in a Florida will contest?
Undue influence occurs when someone exerts pressure over the testator often a caregiver, family member, or advisor that overcomes the testator’s free will and causes them to change their estate plan. It is one of the most common grounds for contesting a will in Florida. A properly witnessed will, especially combined with an attorney’s contemporaneous records, is one of the strongest defenses against such a claim.
Can a Florida will be contested?
Yes. A will can be contested on grounds including lack of testamentary capacity, undue influence, fraud, or improper execution. See our guide on trust administration and what happens after someone dies in Florida for more on how these disputes arise and are resolved.
Do I still need a will if I have a revocable living trust?
Yes. Most trust-based estate plans still include a pour-over will, which catches any assets not transferred into the trust during your lifetime. The pour-over will also names a guardian for minor children, which a revocable trust alone cannot do.
How much does it cost to have a will drafted in Florida?
At The Schoonover Law Firm, a basic will package is priced as a flat fee confirmed in writing before any work begins. Call (305) 299-7496 or schedule a free consultation at estateplanningattorney.us.
Work With a Florida Estate Planning Attorney
Losing a loved one is hard enough. Navigating the legal and financial obligations of trust administration should not add to that burden. Whether you are a successor trustee unsure where to begin, a beneficiary with concerns about how the estate is being handled, or a grantor who wants to confirm your trust will work exactly as intended, The Schoonover Law Firm, P.A. is here to guide you through every step.
If you signed a trust with another attorney and are not sure whether it is properly funded, Medicaid estate recovery in Florida and the other consequences of an improperly administered trust are real. A consultation is a straightforward appointment that can catch problems before they become costly for your family.
Call (305) 299-7496 or email info@estateplanningattorney.us to schedule a free initial consultation. Phone and Zoom appointments are available Monday through Sunday, 8:00 AM to 9:00 PM.
The Schoonover Law Firm, P.A. | 6303 Waterford District Drive, Suite 400, Miami, FL 33126 | Florida Bar #124081
