Blog

A will establishes your last wishes regarding your estate – and your legacy – which makes it an important legal document. The State of Florida has exacting laws that regulate the execution of wills, and failing to follow them can result in a court declaring a will invalid. In Florida, a will must be recorded.

If you have questions or concerns about your own will or as the custodian of a loved one’s will, it’s time to consult with an experienced Florida estate planning lawyer. 

Recording a Will in Florida

Florida has legal requirements in place that necessitate the recording of wills. The custodian of a will – or the person who is responsible for the legal document itself – must deposit it with the clerk of the court that has jurisdiction over it within ten days of learning that the decedent, or the person whose will it is – has died. Upon deposit of the will, the custodian is also tasked with supplying the clerk of court office with the decedent’s birth date or the last four digits of their social security number.

Failure to accomplish this task in a timely manner can lead to legal fees on the part of the custodian. In other words, failing to deposit the will according to state law without a reasonable or just cause can lead to costly fees for the person who is assigned the task. 

Once Recorded

Once a will has been recorded, the Florida court handling the matter must determine the validity of the legal document. This involves the testator, or the person who created the will, following the requirements necessary to create a legally binding will in Florida. 

Being of Sound Mind

The first requirement when it comes to a legally binding will is that the creator is of sound mind and is at least 18 years old. A minor who has been emancipated also has the legal authority to create a will. 

Created Voluntarily

Another necessary element of a will in the State of Florida is that it’s created voluntarily. Your will is your personal expression of your wishes, which means you must create it of your own volition. Any evidence that the will was created as a result of undue influence, under duress, or in relation to fraud can lead to the document being declared void. 

Specific Execution Requirements

There are also administrative requirements that must be met in order for a will to be valid in Florida, including:

• The will must be in writing.
• The testator must sign the will at the end of the document. 
• Someone else must testify to the testator’s signature at the document’s end – in the presence of the testator and by their instruction.
• There must be two attesting witnesses to the above signatures who must also sign the will in the presence of the testator and of each other.

In other words, the State of Florida takes the matter of creating and recording wills very seriously, and working with a seasoned attorney for wills is always advised.

The Probate Process

Florida wills are administered through the probate process, which is a legal proceeding that is designed to accomplish the following:

• Pay off the decedent’s creditors
• Distribute the decedent’s assets in accordance with their wishes – as described in their will

A will can be created at any time and can be changed any number of times – through what is called a codicil or amendment, which must be executed under the same strict requirements as the original will. 

While the probate process can be lengthy and legally complex, you can count on your wishes as defined in your well-crafted will to be carried out. As such, having a confidence-inspiring will in place can provide you with the peace of mind you’re looking for, and working closely with a trusted Florida will contest lawyer is an important first step. 

Your Will

Your will is your opportunity to share how your assets will flow to your loved ones when the time comes. 

Restrictions

In general, there are no restrictions in relation to your will. You have the right to assign any asset to anyone you choose – and in any way that you choose. The only restriction is against the inclusion of provisions that go against public policy. As such, any bequests that are predicated on religious criteria or race are not legally enforceable. Further, a Florida estate planning lawyer can’t make themself the heir of a client. 

Self-Proving

In order for your will to enter the probate process, your heirs will be required to prove its legitimacy, which amounts to providing the court with evidence that it was executed in accordance with the law. In Florida, however, a will can be self-proving, which eliminates the need for this step. 

A self-proving will doesn’t require additional authentication prior to admission into probate. In order to qualify as a self-proving will, all the following must apply:

• The will is acknowledged by you, the testator.
• The will is also acknowledged by two witnesses.
• The will is notarized. 

Your Personal Representative

In your will, you’ll nominate a personal representative who will be in charge of carrying out your wishes regarding your property as well as the administration of probate when the time comes. Because your personal representative is tasked with such a profoundly important responsibility, you should choose someone whom you trust completely. While your personal representative may also be the custodian of your will – who makes sure it is recorded according to state law – this isn’t necessarily the case.

Turn to an Experienced Florida Estate Planning Lawyer for the Legal Guidance You Seek 

Thomas Upchurch is a compassionate Florida estate planning lawyer at Upchurch Law who understands the significance of your will and other estate planning needs and has the legal insight and focus to help. Your legacy is an expression of your commitment to your loved ones, which makes your efforts of critical importance. 
To learn more about what we can do to help you, please don’t wait to contact or call us at 386-320-6169 today.