Every estate plan, regardless of its monetary worth, has the potential to establish a long-lasting legacy. However, it only serves its intended purpose when written in clear terms and in accordance with Florida’s probate code. No matter how minor, any mistake could force a court to change the terms of an estate’s administration, raising the likelihood of litigation and potentially depriving heirs of their rights to inheritance.
For nearly 50 years, DeLoach, Hofstra & Cavonis, P.A., has helped Floridians protect their legacies from uncertainty. From your initial consultation to succession, our experienced team of Sun City Center probate and estate litigation lawyers help prevent people from making mistakes in wills, ensuring your estate is protected from the perils of probate. 
Legal Requirements for Florida Wills
State law presumes that every adult has a fundamental right to make decisions about their estate. Although estate plans differ in their details, most include a last will and testament which explains how assets should be divided among heirs and beneficiaries.
In writing a will, testators have an opportunity to ensure that their heirs receive gifts of real value—a home to live in, a car to drive, or an heirloom of great personal importance. Since this is a legally binding document that directs the distribution of estate assets—some of which, like a home, could easily be worth hundreds of thousands of dollars—legislators require that each will adhere to certain standards. These standards are detailed in the Florida Statutes and in some cases, subject to the effect of court precedent.
For a Florida will to be recognized as valid, it must meet requirements including, but not limited to:
- The writer, or testator, must typically be at least 18.
- The testator should be of sound mind and able to understand the nature of their assets, and how writing a will affects their possessions.
- The will must be written and signed in the presence of two witnesses. The witness must sign at the same time as the testator, all in each other's presence.
Any failure to meet these basic requirements could force a Florida probate court to invalidate a will and not enforce it. Unfortunately, if and when a will is determined invalid, the estate is subject to intestate succession—a process that distributes inheritances through a stringent legal formula, and which could cause heirs to lose their share.
Common Mistakes in Florida Wills
Typical errors in wills involve the improper execution of a testament: the failure to sign a will, for example, or to obtain the signatures of at least two competent adults. However, other mistakes can have significant consequences, which don’t always invalidate a will but could cause unexpected complications during probate. Here are some of the mistakes to avoid when drafting a will. Here are some of the most common mistakes in Florida wills.
Insufficient Testamentary Capacity
Almost everyone recognizes that writing a will is the only guaranteed way to prevent intestacy, otherwise known as dying without one. Nonetheless, far too many Floridians delay drafting their first testament. In some cases, waiting too long raises questions about a testator’s “testamentary capacity.” This is because Florida, like most other states, requires that a will be written or authorized by an adult “of sound mind.”
Any suspicion of cognitive decline—such as dementia or Alzheimer’s disease—could end in an expensive probate contest. Even if a challenge fails, it could cost the estate significant resources.
Ambiguous Language
If a will isn’t written by an experienced Sun City Center estate planning attorney, it might inadvertently include what are sometimes termed as “mistakes of expression.” A mistake of expression could be any of the following:
- A clause that misstates the testator’s intent.
- A provision that conflicts with or contradicts another provision.
- Any ambiguous language that makes it difficult to determine meaning.
- Lack of residuary beneficiary (where assets go after specific bequests)
Ambiguous language and other mistakes of expression do not necessarily invalidate a will, but the court may be required to exercise its discretion in determining the testator’s original intent.
Unqualified Personal Representative (Executor)
Many people—especially part-time Sunshine State residents with properties in other states—make the mistake of presuming that Florida doesn’t have residency requirements for executors. However, state law typically requires that an estate representative be either a Florida resident or an out-of-state relative of the deceased.
If an executor is determined unqualified, a probate court may have to appoint another administrator in their place. The will itself would still be valid but another personal representative would need to be appointed.
Failure to Recognize State-Specific Laws and Statutes
Florida law has many peculiarities which, if overlooked, could turn upend an estate plan in its entirety.
For example, Florida Statutes § 732.4015 states that no person shall “devise” a homestead if they’re survived by a spouse or minor child. In other words, a testator survived by a spouse cannot leave their principal home to anyone except their married partner or a minor child—even if they would prefer that it be transferred to an adult child, charity, or other heir.
Conclusion
There are a lot of things that can be done wrong in creating your will, and it may be only your heirs that discover the problem upon your death. The best way to help your heirs are to see a qualified attorney to help make sure your wishes are followed.
