Florida will: Last will and testament requirements

Every adult should have a will, no matter their age or income. Without one, you die intestate, which means the State of Florida has a default plan for distributing your belongings and making decisions about your estate — one that probably doesn’t reflect your personal wishes.

With a will, you make important decisions about who should care for your children, look after your pets, inherit your property, and more. These are crucial decisions that shouldn’t be left to chance.

Florida last will and testament requirements

To make a valid will in Florida, you must meet the following requirements:

• You must be at least 18 years old or an emancipated minor.
• You must be of sound mind and memory. This means you have the ability to make reasonable judgements about the matters in your will and understand the implications of your decisions.
• Your will generally must be in writing, meaning it exists in a physical form. This includes both handwritten and typewritten documents.
• Your decision to execute your will must be free and voluntary. It can’t be the result of persuasion or coercion.

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Does your will need to be witnessed in Florida?

Yes — for your will to be valid under Florida law, it must be properly executed and witnessed. This means:

• You must sign at the end of your will in the presence of two competent witnesses.
• Your witnesses must each sign your will while in the presence of yourself and the other witness(es).

Traditionally, you and your witnesses had to be in each other’s physical presence to properly execute a will. Since July 2020, however, Florida also allows the use of electronic wills, which you can execute and witness remotely.

Who can serve as a witness?

Under Florida law, any individual of sound mind can serve as a witness to your will. However, estate-planning attorneys generally recommend you choose “disinterested” witnesses, meaning they wouldn’t be entitled to receive any benefits from your will or from local inheritance laws.

Do you need to notarize your will in Florida?

No — in Florida, you don’t need to notarize your will to make it valid. However, having your will notarized in Florida makes "self-proving." When a will is self-proving, it can be admitted to probate without needing your witnesses’ testimony, which can speed up the process. To make a self-proving will in Florida, you and your witnesses must sign a self-proving affidavit, in addition to the will itself, and the affidavit must then be notarized.

Are holographic (handwritten) wills legal in Florida?

In Florida, holographic wills — wills written entirely in the will-maker’s own handwriting — are only valid if they meet the legal requirements for a valid will outlined above. Specifically, any will, even handwritten ones, must be signed by the testator and witnessed by at least two people, who must also sign in the presence of each other and the testator, in accordance with Florida law.

Learn more about the pitfalls of holographic wills and a better alternative you can use instead.

What are Florida’s rules for executors?

The executor, or personal representative, is the person responsible for managing your probate estate and carrying out the wishes described in your will. In Florida, the term personal representative is used.

You can use your will to name the person (or people) you’d like to be your executor, but not everyone is eligible to serve.

An executor in Florida must:

• Be at least 18 years old
• Be mentally and physically capable of performing the duties of an executor
• Have never been convicted of a felony
• Either be a Florida resident at the time of your death, or be related to you by blood, adoption, or marriage. For example, your executor could be your spouse, parents, children, extended family, or the spouses of any of these people.

Florida’s rules regarding out-of-state executors can be complicated, so it's a good idea to choose someone who is a Florida resident.

How to revoke or change your will in Florida

Revoking your will

In Florida, you can generally revoke, or nullify, your will at any point before you die. There are a few ways you can revoke your will:

• Physically destroy your will: If you deliberately burn, tear, shred, or otherwise destroy your will, it will be revoked and no longer legally valid.
• Write a revocation: You can write a statement that revokes your will. This document must be signed and witnessed just like a will.
• Write a new will: You can write a new will that states it revokes all previous wills and codicils. The new will must be signed and witnessed properly. It’s generally safest to include this language, and to also destroy your previous wills and codicils to avoid confusion.

Changing your will with a codicil

If you want to make a few changes to your will instead of revoking it completely, you have the option to make a codicil. A codicil is a legal document that makes changes to your existing will. It must be signed and witnessed just like the original will. In Florida, this means you must be of sound mind to make a codicil, and it must be signed by you and two witnesses.

A single will can be updated by multiple codicils, but it can become confusing to keep track of multiple documents. It’s often wisest to create a new will. Also, if two codicils to the same will contain opposing directions, the later codicil will override the earlier one. You can revoke a codicil by destroying it without affecting your will.

Probate in Florida

Probate is the legal process of gathering the assets of a deceased person and distributing them to that person’s beneficiaries. During probate, your executor will be responsible for preparing an inventory of your estate’s assets and managing those assets until they can be distributed. A court oversees the process to resolve any questions and disputes that might arise, make sure your remaining debts are paid, and ensure that your property is passed on to the right people or organizations.

Here’s a high-level overview of what happens during the probate process:

1. Someone, usually your executor or a family member, files your will (if you had one). In Florida, they have 10 days from the date they are notified that you have died to file your will.
2. The court validates your will.
3. The court appoints a personal representative, or executor, to oversee your estate.
4. Your executor identifies your assets and debts, and contacts your beneficiaries and creditors to notify them of your passing.
5. Your executor pays any of your debts, usually with money from your estate.
6. Your executor distributes assets to your beneficiaries according to the wishes outlined in your will. If you didn’t have a will, your assets are distributed based on Florida's intestate laws.

If you want to contest a will in Florida, you typically have three months from the probate court notice to do so.

Florida intestate succession

What happens if you die without a will in Florida? When you die without a will — known as dying "intestate" — Florida's estate laws determine who inherits what you leave behind. Despite what you may think, your loved ones have no control over your estate when you die without a will.

Here’s the typical order of succession in Florida, according to the Florida Probate Code:

• If you’re married, your spouse will likely inherit at least half of your entire estate, even if you have children together.
• If you’re not married, your estate goes to any children you may have. If you have no children, then it’ll be passed on to your parents; if no parents, then siblings; and if no siblings, then your estate is distributed to any extended family you may have.
• If the court can’t find any living relatives by blood or marriage, the state of Florida will inherit your property as a last resort.

When you die without a will, you leave important decisions about your legacy in the hands of your local court and state laws. Learn more about how dying without a will can impact the people you love.

Is Florida a community property state?

No, Florida isn’t a community property state.

Community property states consider all assets acquired during a marriage to belong to both spouses equally. As a result, the surviving spouse is usually entitled to at least half of their spouse’s estate, even if the deceased spouse wrote something different in their will.

Instead, Florida follows the laws of equitable distribution. This means assets acquired during a marriage belong to the spouse who earned it (for example, money you deposit into your employer’s 401k plan).

However, your spouse may still be entitled to part of your estate when you pass away due to a statute called elective share. Florida’s elective share law protects a person who was cut out of their spouse’s will or was left only a small part of their estate. In Florida, elective share is generally 30% of the estate, but the exact amount can change depending on the situation. This law is meant to protect surviving spouses from being disinherited or left with insufficient support after their spouse passes away.

Most people choose to leave the majority of their estate to their spouse. If you and your spouse have agreed that your assets should go to someone else, it’s a good idea to get their permission in writing before you pass away. If you want to leave your spouse out of your will for any reason, consider meeting with an estate attorney to discuss your situation.

Estate and inheritance tax in Florida

There are two types of taxes that could affect your estate and your heirs after you pass away: estate tax and inheritance tax.

Florida estate tax

Estate tax is a tax on the transfer of the estate of a deceased person. It’s calculated based on the value of the deceased person's property at the time of their death. In the US, your estate could potentially be subject to estate taxes at both the state level and the federal level.

Like most states, Florida doesn’t collect any estate taxes. (Only a few states do.)

For federal estate tax, the 2024 US federal estate tax exemption is $13.61 million for individuals and $27.22 million for married couples. This means your estate won’t owe any federal estate tax if your property is valued below this amount.

In 2026, the exemption threshold will drop to $5 million for individuals when the 2017 Tax Cuts and Jobs Act expires, so you may want to consider this when planning your estate.

Florida inheritance tax

Inheritance tax is a tax someone has to pay when they inherit property or assets from an estate. Florida doesn’t collect inheritance tax, and neither does the US federal government.

How to make a will in Florida

If you don’t have a last will and testament, now is a great time to make one — and the process might be easier than you think! Here are the steps to write a will in Florida:

1. Decide how you’re going to write your will. For example, depending on your situation, you might choose to use an online will-maker or hire a lawyer.
2. Choose beneficiaries for all your assets. Beneficiaries are the people or organizations you want to inherit your property after you die. If you want, you can also donate to a charity in your will.
3. Choose guardians for your minor children or pets, if you have them.
4. Choose your will executor. This person will work with the probate court to carry out the wishes in your will.
5. Sign and witness your will according to state law.In Florida, you must sign in the presence of two disinterested witnesses, who also sign.
6. Store your will somewhere safe. It's a good idea to tell your executor where it is.

By following these steps, you can create a simple will that meets the legal requirements in Florida.

With today’s technology, it’s never been easier or more affordable to create a legally-binding will online. Using a reputable online will-maker like FreeWill is a great option if you want to make your will for free without falling into the common pitfalls of a handwritten will.

FreeWill’s free online will-making software comes with thousands of 5-star reviews. It’s completely free and can take as little as 20 minutes to complete. After you’ve finished, you’ll receive a document reflecting your wishes, along with instructions for how to sign and witness it to make it valid in Florida.