What Is a Will in Florida? A Simple Guide for Anyone Over 40

What a will actually is, in plain terms

A will — formally a Last Will and Testament — is a legal document that tells the Florida probate court three things: who inherits your property, who serves as the executor responsible for distributing it, and (if you have minor children) who serves as their guardian.

Think of it as written instructions to your family and to the court. Without it, the court has no instructions. The state steps in to fill the gap, applying Florida's intestate succession statute — which produces outcomes that frequently don't match what you'd actually have chosen.

What a Florida will can do

A valid will lets you:

• Decide who inherits your property: spouse, children, other relatives, friends, charities
• Name a guardian for minor children if both parents are gone
• Choose your executor (called a "personal representative" in Florida)
• Specify funeral preferences, specific bequests, or gifts to particular individuals
• Reduce family conflict by putting your intentions in writing
• Establish a testamentary trust for assets passing to minors or beneficiaries who need protected distributions

What a will CAN'T do

This is the part most people don't realize. A will does not control everything. These assets pass outside the will, regardless of what it says:

• Retirement accounts (IRAs, 401(k)s, 403(b)s) — pass to the named beneficiary on the account, period
• Life insurance proceeds — same
• Annuities — same
• Bank accounts with POD (payable-on-death) designations — pass to the designated person automatically
• Investment accounts with TOD (transfer-on-death) registrations — same
• Property held jointly with right of survivorship — passes to the surviving owner automatically
• Florida homestead — subject to constitutional restrictions on devise if you have a surviving spouse or minor children (Fla. Const. Art. X, § 4(c))

This matters more than people think. If your will leaves everything to your kids but your ex-spouse is still listed as the beneficiary on your 401(k), your ex-spouse gets the 401(k). The will doesn't override beneficiary designations — they take precedence. Reviewing those designations is just as important as having the will itself.

Florida's formal requirements for a valid will

Fla. Stat. § 732.502 sets specific requirements. A Florida will must:

• Be made by someone at least 18 years old and of sound mind
• Be in writing — handwritten or typed
• Be signed by the testator (the person making the will) at the end of the document
• Be signed by two witnesses, in the testator's presence and in each other's presence

A few things to know:

• Holographic wills are invalid in Florida. A handwritten will signed only by you, without two witnesses, is NOT valid here — even if every other state recognizes it.
• Nuncupative (oral) wills are not recognized. A deathbed verbal instruction has no legal force.
• The witnesses should not be beneficiaries. Florida technically allows interested witnesses, but using disinterested witnesses removes any challenge based on undue influence.

A defective will can be worse than no will at all. It creates a presumption of intent without legal force, opens the door to contests, and often results in worse outcomes than a clean intestate distribution would have produced.

The self-proving affidavit: making probate easier

Florida law allows you to attach a "self-proving affidavit" to your will — a notarized statement signed by you and both witnesses confirming the will's authenticity. Without it, the probate court has to track down and verify the witnesses years or decades later, often after one or both have moved, died, or become unreachable.

A self-proving will is admitted to probate without requiring witness testimony. It's a small step at signing that saves significant complications later. Any competent estate planning attorney includes one as standard.

What happens if you die without a will in Florida

Florida's intestate succession statute (Fla. Stat. § 732.101 et seq.) takes over. A judge applies a fixed formula based on family relationships:

• Married, no children: Spouse inherits everything.
• Married, all children from this marriage: Spouse inherits everything.
• Married with children from a prior relationship: Spouse takes half; prior-relationship children share the other half.
• Unmarried with children: Children inherit equally.
• Unmarried, no children: Estate passes to parents, then siblings, then more remote relatives.
• No locatable relatives: Assets escheat to the State of Florida.

Beyond inheritance, dying intestate means a judge chooses your minor children's guardian, the court appoints whoever has priority under Florida statute as the personal representative, and the entire process plays out in formal probate — public record, fees, and timeline.

Updating your will

You can revise or replace your will any time you're of sound mind. There are two ways:

• Codicil — a formal amendment to an existing will. Requires the same witness formalities as the original. Useful for small changes.
• New will — a complete replacement that revokes all prior wills. The cleaner approach for significant changes.

Review your will after marriage, divorce, birth or adoption of a child, death of a beneficiary, significant change in assets, moving to or from Florida, or anytime your wishes shift. Florida has specific consequences for failing to update — for example, divorce in Florida automatically revokes provisions favoring an ex-spouse (Fla. Stat. § 732.507), but other state laws may not match this rule if your will was drafted elsewhere.

Can a Florida will be contested?

Yes. Will contests are filed in probate court and typically allege one of these grounds:

• Lack of capacity — the testator wasn't of sound mind at signing
• Undue influence — someone in a confidential relationship (caregiver, late-life spouse, family member) pressured or manipulated the testator
• Fraud — the testator was deceived about the contents or purpose of the document
• Improper execution — the formal requirements weren't met
• Revocation — a later will or revocation supersedes the one offered for probate

Florida has a relatively short statute of limitations for contests — three months after formal notice of administration is served on the contestant. Will contests are one of the strongest arguments for using a trust instead of (or alongside) a will: trusts are much harder to challenge than wills.

"I don't have much" — why a will still matters

The biggest myth in estate planning is that wills are only for the wealthy. The threshold isn't dollar amount — it's whether you have anyone or anything you want to protect.

Even a modest estate has a car, a bank account, personal belongings, maybe a small retirement balance. More importantly, parents with minor children need a will primarily for guardianship — without one, a Florida judge decides who raises your kids, weighing whoever steps forward against statutory priorities. With a will, you choose.

The cost of a basic Florida will is a fraction of what intestate probate costs an estate. The math is decisive for every economic level.