The Complete Legal Guide to Creating a Valid Last Will and Testament in Florida [WITH EXAMPLES]

A Law Will and Testament is a legal document determining who will receive your assets after passing away. The Will also specifies who will be in charge of distributing your assets to your beneficiaries. 

We’ve helped countless Floridians navigate creating a Last Will and Testament. It’s often not a complicated process, but getting the details right is crucial for your Will to stand up in court. Florida law has many basic requirements that must be met in order for your Will to be considered legally valid. 

This article outlines the requirements for creating a Last Will and Testament in Florida. As always, we recommend speaking with a lawyer before trying to create a Last Will on your own. 

Basic Execution Requirements for Creating a Florida Last Will and Testament

These are the basic requirements to create a valid Will here in Florida: 

1. The Will must be in writing;
2. You must sign the Will at its end; and
3. Two witnesses must sign in your presence and in the presence of each other. 

The witnesses must be present at the same time the Will is signed, they must watch the Will being signed, they must sign in the presence of each other, they must be mentally competent, and they must be at least 18 years old. 

There is absolutely no requirement to hire an attorney to draft a Will for you. However, most people advise you to speak with an attorney before creating your own Will. 

Florida law does allow handwritten Wills (also known as holographic Wills). As long as the handwritten Will is signed at the very end by the creator of the Will and witnessed by two witnesses. 

Florida law does not allow oral Wills. These are Wills where an individual creates a Will just by communicating to other people their final wishes. 

Example: George’s health is failing. He decides to write out his Last Will and Testament without seeking the help of an attorney. He handwrites his Last Will, signs the Will at the end, and has two independent witnesses who witness him signing the Will. The witnesses also sign the Will at the end of the document in George’s presence. 

Result: George’s handwritten Last Will is a valid Last Will and Testament here in Florida and will be upheld by the Courts. 

Pro Tip: we highly recommend avoiding handwriting your Last Will. Your Will should be typed so it easy to read and understand. Florida courts prefer typewritten Wills because they’re clearer and more professional. Even if the handwritten Will is legally executed, handwritten Wills often have many legal issues within the document itself. 

Common Last Will and Testament Terminology

When creating a Last Will it’s important to understand some of the basic terminology used. Understanding the terms helps make sure that your final wishes are accurately expressed and legally binding. Here are some common terms that you will see in a Last Will and Testament:

1. Testator/Testatrix – refers to the person who is creating the Will. Testator is used for men who are creating a Will, and Testatrix is used for women who are creating a Will. 
2. Codicil – a Codicil is a legal document that modifies or amends an existing Will. 
3. Estate – all property, money, and assets owned by the Testator/Testatrix at the time of death.
4. Executor/Personal Representative – the person who is named in the Will to carry out the wishes of the Testator/Testatrix. The Executor/Personal Representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries. In Florida, we always refer to this person as the Personal Representative. Most states use the term executor. However, both terms are used interchangeably. 
5. Beneficiaries – individuals or entities who receive assets under a Will. 
6. Specific Distribution/Bequest – a Specific Distribution is a gift of a particular item or fixed amount of money. For example, leaving $10,000 to your best friend would be an example of a Specific Distribution/Bequest. 
7. Residuary Distribution/Bequest – Residuary Distribution refers to distributions made after all Specific Distributions have been made. Residuary just refers to whatever is left in the estate. 

Who May Make a Last Will and Testament in Florida

Anyone who meets these two basic requirements can create a Last Will and Testament here in Florida: 

1. You must be at least 18 years of age; and 
2. You must be of sound mind. 

That’s it. Those are the only two requirements to create a legal Last Will and Testament in Florida. 

Mental Capacity Requirements for Creating a Will in Florida

Being of sound mind is legally referred to as testamentary capacity. Whether someone has the testamentary capacity to create a Last Will here in Florida is often very difficult to determine. Florida courts look at a number of different factors when determining whether someone has the testamentary capacity to create a Will. 

Generally, someone signing a Last Will must understand the following: 

1. You must know what a Will is and what it means to sign a Will; 
2. You must have a basic idea of your assets; 
3. You must be able to identify your family and the relationships with those who you have designated to receive your property; and 
4. You must understand how your Will distributes your assets. 

Capacity is very tough to determine because it is evaluated at the time of signing the Last Will and Testament, not before or after the signing. That means that someone could be mentally insane for the vast majority of the day, but even with just thirty minutes of lucidity, they could have the necessary capacity to execute a valid Last Will and Testament. 

Additionally, the capacity needed to execute a Last Will and Testament in Florida is generally lower than for other contracts. 

Example: George is elderly and suffers from dementia. He has not previously created a Last Will and Testament. George meets with a lawyer to have a Will drafted. George sundowns. Sundowning causes George to be generally lucid in the morning, but he begins to lose capacity in the afternoon. George’s lawyer recognizes that George sundowns, so he sets the signing of George’s Will for first thing in the morning. During the Will signing, George is able to understand that he is signing a Last Will and Testament, he is able to identify his assets and his family members who he has named as his beneficiaries, and he is able to understand that the Will he is signing leaves his assets to certain family members. 

Result: Most Florida courts would find that George had enough capacity to execute the Last Will and Testament since he understood what he was signing, he understood his property and assets, he understood who his family and beneficiaries were, and he understood that by signing the Will only certain family members would receive assets. 

Key Components of a Valid Florida Will [WITH EXAMPLES]

There is no specific structure or order to a valid Last Will and Testament here in Florida. However, there are common sections found in most wills. Here are some of the most commonly found sections: 

1. Personal Information – A Last Will typically starts by identifying who is creating the Will, and where they live, and this section typically includes a statement about revoking all previously created Wills. 

Example: I, DARTH VADER, make this my Last Will and Testament, I revoke all Wills and Codicils previously made by me. I currently reside in Sarasota County, Florida. I am a citizen of the United States of America.

1. Identification of Family/Beneficiaries – The Will often has an identification section that describes whether the person creating the Will is married and who the members of their family are. Some will also include addresses and dates of births.

Example: I am currently unmarried. I have one son from a previous marriage, Luke Skywalker. 

1. Asset Distribution – This section of a Will is where the creator of the Will dictates how their assets are distributed. Asset distribution language depends entirely on what the individual creating the Will wants. 

Example: I give $10,000 (Ten Thousand Dollars) to Han Solo; provided, however, if he fails to survive me, this distribution shall lapse. 

I give the rest, remainder, and residue of my estate to Luke Skywalker; provided, however, if he fails to survive me, I give all of my estates to Luke Skywalker’s then-living descendants, per stirpes. 

1. Executor/Personal Representative Appointment – Wills also always need to have a section where an Executor/Personal Representative is appointed. The Personal Representative will be the one who carries out gathering all of the decedent’s assets, paying any valid debts, and distributing assets according to the decedent’s wishes. We always recommend naming at least one primary Personal Representative and at least one backup Personal Representative. It is also recommended to name someone who is trustworthy and has a decent amount of financial knowledge. 

Example: I nominate my son, Luke Skywalker, to be the Personal Representative of my Will and estate. If Luke Skywalker fails to qualify, dies, resigns, becomes incapacitated, or otherwise ceases to serve, I nominate my friend, Han Solo, to be the Personal Representative of my Will and estate. 

Pro Tip: Make sure to not name someone who is not qualified to serve. Felons and non-family members who are not residents cannot serve as the Personal Representative. You can the full list of who is unable to serve as Personal Representative here. 

1. Executor/Personal Representative’s Powers – It’s common to also include a list of the powers that a Personal Representative has under the Will. There are too many to list as an example, however, you can find a good list here.
2. Separate Writing Memorandum – Wills in Florida can reference a separate writing memorandum where someone creating a Will can have a separate sheet attached to the Will where they can distribute items of tangible personal property. The benefit of the separate writing memorandum is that it can be prepared before or after the creation of the Will and can be changed any time after the Will is created without having to change or create a new Will. We always include a separate writing memorandum when drafting Wills for our clients.

Example: As permitted by Section 732.515 of the Florida Statutes, I request that the beneficiaries of my estate and my Personal Representative honor the provisions of any memorandum written by me directing the disposition of my tangible personal property. 

Tangible personal property generally includes all items found in the home. These items can be furniture, jewelry, artwork, clothing, vehicles, collectibles, tools, guns, etc. Tangible personal property does not include real estate/land, bank accounts, stocks and bonds, insurance policies, digital assets, intellectual property, business interests, and money/cash. 

1. Signature Page and Self-Proving Affidavit – The signature page is the final component of a valid Last Will and Testament in Florida and it is also the most important component. An error with a signature page could invalidate the entire contents of the Will. 

A valid signature page includes a section where the creator of the Will declares it to be their Last Will and Testament. The signature page will then have a section where the creator of the Will signs in the presence of both of the witnesses. The witnesses will also sign in this section. The final section of the signature page typically includes a self-proving affidavit. A self-proving affidavit is not a requirement under Florida law, but it is highly recommended since it will be much easier for your Executor/Personal Representative to have the Will admitted to the court here in Florida. 

Here’s an example of a self-proving affidavit:

Conclusion

We highly recommend speaking with a competent estate planning attorney before you decide to create your own Will. A simple Will is usually not very expensive and it can save your headaches a lot of money if it is done correctly. If you do plan on drafting the Will on your own, make sure to follow this guide very carefully and review the Florida Statutes as needed.