Many people feel a great sense of relief after making a last will and testament, taking comfort in the fact that their loved ones will be provided for after their passing.
Unfortunately, this peace of mind may be short-lived when the creator discovers the will isn't legally valid—or worse, when beneficiaries discover this fact upon their loved one’s death.
Legal Requirements for Wills in Florida
Each state sets forth its own procedures that must be followed in order for a will to be considered legally binding. These must be followed by the testator—the person creating the will—witnesses, and legal representatives acting as advisors in the process.
It's vital that testators follow the letter of the law when creating or modifying the documents in their estate plans. Without an attorney’s guidance, everything in your estate could be distributed according to Florida’s intestacy laws, as if you had never made a will at all.
Under Florida law, a last will and testament:
- Must be in writing. Florida probate courts don't allow oral declarations (nuncupative wills) or handwritten instructions from a testator without witness signatures (holographic wills) as valid wills.
- Must be made by a competent person. Florida law won't consider a will if it's created by someone who is not of sound mind or is under age 18 (unless they're an emancipated minor).
- Doesn't require any official terminology or standardized documentation. Florida does not require any particular forms, phrasing, or language in order to make a will valid as long as it's executed with the formalities required by law.
- Must be signed by the testator. A testator can make any mark, symbol, letter, or initials as long as they intend the mark to serve as their signature.
- Must be signed by and in the presence of at least two witnesses. Witnesses must sign the will in the presence of the testator, and in the presence of one another. Any competent person can serve as a witness, including a relative or a person who stands to benefit from the terms of the will. Notice that everyone must sign in the testator's presence - a witness cannot witness the signature and sign it later - everyone must sign the document in each other's presence. Also, we generally do not want people named in the will to act as a witness - this can create its own problem in the realm of undue influence.
- Can be amended or revoked. A will can be amended or completely revoked by a subsequent will or codicil—a document that provides instructions or modifications to a will. The previous will doesn't have to be revoked formally in a subsequent will or codicil, but can be invalidated solely through an inconsistency in the terms of the previous will. In order to be legal, a codicil requires the same execution formalities of a will.
- Can be contested. Any provision in a will attempting to discourage any interested person from contesting the will, including penalizing a person by disinheritance or other proceedings relating to the estate, isn't enforceable. However, any attempt to contest the validity of all or part of a will cannot take place before the death of the testator.
- Using an attorney. While an attorney is NOT needed to create a will, we have seen multiple problems arise from on-line or other wills. An attorney can help clarify your wishes and make sure you know how everything works together. In particular, you may want to talk about avoiding probate through a revocable living trust, which an estate planning attorney can walk you through.
Courts May Only Invalidate a Will Under Certain Circumstances
While a will can be declared void if it was procured by fraud, duress, or undue influence, a mistake in the drafting or execution of a will may not be grounds to invalidate the entire document. Probate courts consider a will to be a legal contract, and have to evaluate whether the errors are enough to declare the will procedurally invalid.
On the other hand, the court may simply declare one or more portions of the will to be invalid, leaving the rest of the document intact.
If you believe you may have grounds to challenge a loved one’s will, the attorneys at DeLoach, Hofstra & Cavonis can help. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
Who Should Create Your Will?
It is called a last will and testament because it is the last thing you wanted done on this Earth. Do not leave it up to an on-line form - use a professional to make sure your wishes are accomplished. Going to a good estate planning attorney will help you accomplish your goals so that your last wishes are accomplished and your loved ones receive your assets.