A Florida resident who either dies without a Will or with a Will that does not meet the basic formalities of Florida law is said to have died “intestate”. In that case, a person’s estate will be distributed by the probate court according to provisions of Florida law.
Dying Without a Will or Intestate
If someone dies without a Will there cannot be a contest of the court’s distribution of the estate under the intestacy laws. Even if that person who died indicated a different distribution during their lifetime the law controls the asset distribution. The law will also control other matters and a probate judge will decide things such as appointment of a child's guardian, and choice of executor.
A person can legally decide how the distribution of his or her property to whom by means of a valid Will. A will should be reviewed if someone moves to another state, marries, divorces, has children, or any has other major life changes affecting their finances, or family.
Who May Make a Will
Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. A person creating a Will is referred to as the Testator. To be valid in the State of Florida a last Will and Testament must be executed with certain formalities defined by law.
As to form, Florida provides that the Will must be in writing. A will hand written by the testator is called a holographic will. A holographic will is not valid in Florida, unless it includes the formalities described below. If a will handwritten by the testator includes the required Florida formalities, it is not considered holographic under Florida law and is valid.
The testator's signature must be on the Will. This signature must be at the end of the document. The law provides an alternative to the testator’s signature in the event of a physical incapacity. The Will may be signed by someone else on behalf of the testator. In that event, the testator's name must be subscribed at the end of the Will by some other person in the testator's presence and by the testator's direction. This individual may not be one of the two witnesses otherwise required.
Two Witnesses are Required
The signatures of two attesting witnesses are mandatory. Any person competent to be a witness may witness a Will. The witnesses must sign in the presence of the testator as well as the presence of each other. The witnesses may be persons with an interest in the Will, that is beneficiaries. While the law allows for beneficiaries to be witnesses, it is often better for individuals with no interest in the Will to witness so that there will not be any claim that the witnesses exerted influence over the testator.
Self-Proven Wills
While not required for a Will to be valid, if it is possible, an affidavit of the Will’s authenticity signed by the testator and the two witnesses before a notary makes the Will “self-proven”. Such a “self-proven”, uncontested Will may be probated in a simplified procedure.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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