Do I Need a Will in Florida?

It is important to first clarify that every will goes through probate, which is the court proceeding where a decedent’s (or deceased person’s) assets are distributed. Although everyone should have a will, most of the time, it is not the only estate planning document needed.

It is important to have a licensed Florida attorney review your will, if you have one. Only an attorney can tell you if your will is validly executed and if it contains the necessary provisions.



What Are the Requirements for a Will to be Valid in Florida?

Generally, the basic requirements for a valid will in Florida are:

  • The will must be in writing
  • There must be the signature of the person who makes or has the will created (the “testator” or “testatrix”);
  • The testator or testatrix must sign in the presence of two witnesses

If a will is missing one of the above components it will likely be declared invalid and cannot be used to distribute the decedent’s estate. Consequently, the decedent’s estate will be dispersed according to Florida’s intestate guidelines.

When there is a will: Testate Succession

If a will is determined to be valid, the court proceeding of probate can be started. In Florida, all probate cases must be opened by a licensed Florida attorney, and the Florida Statutes outline reasonable attorney fees, which can be as high as 3% of the estate. If the will is drafted clearly and with sufficient detail, it is likely that the estate will be administered exactly as specified in the will. A valid Florida will should appoint at least one personal representative to assist the attorney with the administration of the estate after the decedent’s death.

A personal representative must be approved by the Judge and will be evaluated based on age, relation to the decedent, residency, and  criminal history. A personal representative is vitally important during this process. They will help to ensure that legal guardians of any minor children be assigned, and that designated beneficiaries inherit the correct property. Although it seems that the process of testate succession should be straightforward due to the terms of the will, the imposition of contingencies by the state often make it difficult for a will to pass as completely valid.

When there is no will: Intestate Succession

If an individual dies without a will, or if a will is found to be invalid, the decedent’s estate will be distributed according to Florida intestate succession laws. The biggest limitation of intestate succession is that the only people who are eligible to inherit or receive the decedent’s assets are family members. Florida probate law prescribes the order in which family members may inherit: (see Fla. Stat.§732.103)

  1. Surviving Spouse
  2. Children
  3. Parents
  4. Siblings and their descendants
  5. Extended family (paternal and maternal)
  6. Family of last deceased spouse

Of course, this list is merely a broad overview of an extremely complex area of law. For example, if a decedent dies with a spouse and children of the non-current marriage, the spouse will only receive 50% of the assets and the children will receive 50%. Also, a decedent’s estate could pass to the family of their late spouse if no other relatives are alive.

Experienced Estate Planning Attorney in Palm Coast

There is no better qualified estate planning law firm in Flagler County than Eldredge and Davis, P.A.. Our team has extensive experience with Florida wills, trusts, and probate law and aims to avoid probate to ensure your assets pass to the intended beneficiaries without delay, or unforeseen cost. Our office offers free consultations to review prior drafted documents or talk about creating an estate plan. Our office believes you should have easy access to an estate planning attorney. Contact Eldredge and Davis at our Palm Coast office for your free consultation.