Florida Wills: Ultimate FAQ

Florida Wills: FAQ

  1. Key Statutes and Rules
  2. Who Can Create a Will
  3. Permissible Form of Will
  4. Will Execution Requirements
  5. Limitations on Gifts to Fiduciaries and the Attorney Draftsperson
  6. Rights of Family Members to Inherit
  7. Common Will Provisions
  8. Executors
  9. Trustees
  10. Guardians
  11. Changes to Will After Execution
  12. Special Circumstances Regarding Gifts or Recipients
  13. Lost Wills
  14. Rules of Intestacy

Key Statutes and Rules

What are the key statutes and rules that govern wills in Florida?

The rules and laws pertaining to wills and probate proceedings in Florida are found in:

  • The Florida Probate Code which sets out:
  • the substantive laws of intestacy, which define which parties inherit in the absence of a will;
  • the laws applicable to wills; and
  • the laws applicable to probate proceedings.
  • (§ 731.005 – 735.302, Fla. Stat. Ann.)
  • The Florida Probate Rules that set out the rules and procedures applicable to probate proceedings in Florida, which are often relevant to wills (FL ST PROB Rule 5.010 to 530).

Who Can Create a Will

Is there a minimum age requirement to create a will?

A person must be at least 18 years of age or be an emancipated minor to make a valid will in Florida (§ 732.501, Fla. Stat. Ann.).

What is the standard of mental capacity required to create a will?

A person must be of sound mind to create a valid will in Florida (§ 732.501, Fla. Stat. Ann.).

Soundness of mind requires that the testator understand all of the following at the time the testator executes the will:

  • The nature and extent of the property the testator owns.
  • The parties naturally inheriting under the will.
  • The practical effect of the will as executed.

(Diaz v. Ashworth, 963 So. 2d 731, 734 (Fla. 3d DCA 2007).)

If any of these elements is missing, the testator does not have the capacity to make a valid will.

A person does not have to be of sound mind at all times, just at the time that person executes the will. A demented or insane person may execute a valid will in Florida if that person does so during a “lucid interval.” (Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1997.)

Can an agent under a power of attorney create a will on behalf of a testator?

In Florida, an agent acting under a power of attorney may not execute or revoke any will or codicil for a principal (§ 709.2201(3)(d), Fla. Stat. Ann.).

Permissible Form of Will

What form must the will take?

  • Handwritten (holographic) wills are permitted.
  • Oral (nuncupative) wills are permitted.
  • Contractual wills are permitted.
  • Statutory wills are permitted.
  • Electronic wills are permitted.
  • Out-of-state wills are binding.

Handwritten (Holographic) Wills

A holographic will is generally understood to be a handwritten will that is signed by the testator but is not witnessed. Holographic wills are generally not valid in Florida. However, a will handwritten by the testator and executed with the formalities required for a valid will in Florida is not considered holographic and is valid (§ 732.502, Fla. Stat. Ann.).

Oral (Nuncupative) Wills

A nuncupative will is generally considered to be an oral will. Nuncupative wills are not valid in Florida. (See Malleiro v. Mori, 182 So. 3d 5 (Fla. 3d DCA 2015), rehearing denied and § 732.502, Fla. Stat. Ann.)

Notarial wills are also considered nuncupative and are not valid if unsigned by the testator. A notarial will is a will that is dictated to and taken down by a notary and stored by the notary. This procedure is used in some foreign countries. (See Malleiro, 182 So. 3d 5, rehearing denied and § 733.205, Fla. Stat. Ann.)

Contractual Wills

A testator may agree to:

  • Make a will, not make a will, or not revoke a will.
  • Give a devise, not give a devise, or not revoke a devise.

(§ 732.701(1), Fla. Stat. Ann.)

To be enforceable, the agreement must be:

  • In writing and signed by the agreeing party in the presence of two attesting witnesses if executed by a Florida resident.
  • Valid under the laws of the state or country where it was executed when it was executed if executed by a nonresident of Florida.

(§ 732.701(1), Fla. Stat. Ann.)

There is no presumption that a testator entered into a contract to make a will or not to revoke a will because the testator executed joint or mutual wills (§ 732.701(2), Fla. Stat. Ann.).

Statutory Wills

Florida does not provide a statutory will.

Electronic Wills

Florida does not currently permit electronic wills. On June 26, 2017 Florida Governor Rick Scott vetoed the Florida Electronic Wills Act. The Florida Electronic Wills Act:

  • Allowed wills to be signed electronically and witnessed and notarized by video conference if certain conditions were met.
  • Authorized the probate of electronic wills of non-Florida residents in Florida if the qualified custodian of the electronic will under the Act was located in Florida.

Governor Scott praised the idea of electronic wills but expressed concerns with the bill in its current form, and requested that the Legislature address the outstanding issues during the next legislative session.

Out-of-State Wills

Except for holographic and nuncupative wills, a will executed in conformity with another state’s or country’s requirements is considered valid in Florida if it is valid under the laws of the state or country where it was executed (§ 732.502(2), Fla. Stat. Ann.).

Will Execution Requirements

What are the execution requirements for a valid will?

  • Requirements for the testator’s signature.
  • Any requirements for witnesses to a will.
  • Any requirements for the will to be notarized.
  • An example of an attestation clause.
  • The requirements for a self-proving affidavit.
  • If electronic wills are permitted, any different execution requirements.

Testator’s Signature

A will must be signed by the testator at the end of the document in Florida (§ 732.502, Fla. Stat. Ann.).

If the testator is physically capable of signing the will, the testator should sign the will. If necessary, the testator can have another person sign on the testator’s behalf. A signature by another person on behalf of a testator must be both:

  • In the presence of the testator.
  • At the direction of the testator.

(§ 732.502, Fla. Stat. Ann.)

Witness Requirements

At least two witnesses must sign a will. To serve as witnesses, the individuals must be competent (§§ 732.502(1)(b) and 732.504(1), Fla. Stat. Ann.). While use of two witnesses is sufficient, some practitioners have wills signed by three competent and disinterested witnesses. This is sometimes done as an added precaution to increase the likelihood that at least one witness is available if needed at the time of probate (§ 733.201(2), Fla. Stat. Ann.).

A beneficiary or other interested person ideally should not serve as a witness, but if they do, this does not in itself invalidate the will (§ 732.504(2), Fla. Stat. Ann.).

The witnesses must sign in the presence of both:

  • The testator.
  • Each other.

(§ 732.502(1)(c), Fla. Stat. Ann.)

Notary Requirements

There is no requirement for a will to be notarized in Florida unless the will includes a self-proving affidavit. All self-proving affidavits must be notarized (§ 732.503, Fla. Stat. Ann.).

Sample Attestation Clause

The attestation clause states that the will was signed or acknowledged by the testator in the presence of the witnesses and that the testator declared to each of the witnesses that the document is the testator’s will. The attestation clause typically takes the following form:

”The foregoing instrument was signed by the Testator in our presence and declared by the Testator to be the Testator’s Will, and we, the undersigned witnesses, sign our names hereunto as witnesses at the request and in the presence of the Testator, and in the presence of each other on the [DATE] day of [MONTH], [YEAR].”

The witnesses sign the will and provide their addresses in the space directly below the attestation clause.

Self-Proving Affidavit

A will that is self-proved is admitted to probate without having to submit additional proof that it was executed in conformity with Florida law (§733.201(1), Fla. Stat. Ann.). A self-proving affidavit is usually made a part of a will, as an attachment at the end, but it can be signed after the will’s execution (§ 732.503, Fla. Stat. Ann.). The self-proving affidavit creates a rebuttable presumption that the signature and witness requirements were met at the time of execution without the need for live testimony or affidavits from the witnesses after the testator’s death (§ 733.107, Fla. Stat. Ann.).

In the affidavit, the testator and witnesses swear that:

  • The testator declared the document to be the testator’s will.
  • The testator signed the will in front of the witnesses.
  • The witnesses signed the will in the presence of each other.

The notary then acknowledges the testator’s and witnesses’ statements and identities.

A self-proving affidavit is not required to make a valid will, but it can save valuable time during the probate process. If the self-proving affidavit is not submitted with the will, the petitioner must gather proof that the will was properly executed, which can be troublesome if witnesses cannot be located or if they have died. All estate planners should include a self-proving affidavit as part of every will execution, if practicable.

The Florida Probate Code provides a form for a self-proving affidavit and it should be used (§ 732.503, Fla. Stat. Ann.). A will that is self-proved under a prior version of the statute or self-proved under the laws of the state in which it was executed, is considered self-proved in Florida (§ 732.503(2), Fla. Stat. Ann.).

Electronic Will Execution Requirements

Florida does not currently permit electronic wills.

Limitations on Gifts to Fiduciaries and Attorney Draftsperson

Are there any limitations on beneficiaries a testator can name in a will?

  • Gifts to trustees named in the will.
  • Gifts to guardians.
  • The lawyer who drafted the will.

Gifts to Personal Representatives

In Florida, a will generally can provide for gifts to executors (typically referred to as personal representatives in Florida).

Gifts to Trustees Named in the Will

A will generally can provide for gifts to trustees named in the will.

Gifts to Guardians

A will generally can provide for gifts to guardians.

Gifts to Lawyer Draftsperson

Any part of a will that makes a gift to a lawyer or a person related to a lawyer is void, unless the lawyer or other recipient is related to the person making the gift, if the lawyer did any of the following:

  • Prepared the will.
  • Supervised the execution of the will.
  • Solicited the gift.

(§ 732.806(1), Fla. Stat. Ann.)

This provision extends to a lawyer if the will was prepared or the execution was supervised by that lawyer’s employee or another lawyer employed by the same firm (§ 732.806(7)(a), Fla. Stat. Ann.).

If a provision of a will making a gift to a lawyer or person related to a lawyer is voided because of this rule, the rest of the will is not affected including provisions that make a substitute or contingent gift (§ 732.806(6), Fla. Stat. Ann.).

Any provision in the will waiving this rule is unenforceable (§ 732.806(3), Fla. Stat. Ann.).

Rights of Family Members to Inherit

Are a testator’s will bequests affected by community property laws, elective share laws, or other local laws that prohibit a testator from excluding a beneficiary from taking a share in the estate?

  • The testator’s spouse.
  • A child of the testator.

Disinheriting a Testator’s Spouse

In Florida, spouses cannot disinherit each other unless there is a pre-nuptial or post-nuptial agreement whereby a spouse expressly waives the right to inherit and to claim an elective share (§§ 732.201 and 732.702, Fla. Stat. Ann.). Absent this waiver, there are two remedies available to a disinherited surviving spouse, depending on when the testator signed the will.

If the testator signed the will while married to the surviving spouse, the elective share is available for the surviving spouse whether or not the testator’s will provides for the surviving spouse. The elective share is a statutory amount equal to 30% of the decedent’s elective estate (§ 732.2065, Fla. Stat. Ann.). The elective estate includes the decedent’s probate estate as well as the decedent’s interests in other, non-probate property, such as:

  • Jointly titled assts;
  • Pay-on-death and transfer-on-death accounts;
  • Life insurance cash surrender value;
  • Revocable trust assets;
  • Retirement accounts; and
  • Gifts made in the last 12 months of the testator’s life.

NOTE: This list is not exhaustive (§ 732.2035, Fla. Stat. Ann.). However, some assets are statutorily exempt and excluded from the value of the elective estate (§ 732.402(7), Fla. Stat. Ann.).

If the testator signed the will before marrying the surviving spouse, that spouse may be eligible to take either 1). a pretermitted spouse’s share, which is equal to a spouse’s intestate share or 2). an elective share (§§ 732.201 and 732.301, Fla. Stat. Ann.).

Disinheriting a Child of the Testator

A child generally has no right under Florida law to inherit from a parent, subject to a few exceptions (J.E.W. v. Estate of Doe, 443 So. 2d 249, 251 (Fla. 1st DCA 1983)). A child that is born before the testator signs the will and not included in that will has limited rights under the law. These limited rights include, in some circumstances, a right to a family allowance, exempt property, and the testator’s homestead (§§ 732.402, 732.403, and 732.4015, Fla. Stat. Ann.

If a child is born or adopted after a will is signed and is not provided for in the will, that child may be entitled to a pretermitted child’s share.

Common Will Provisions

What are the specific provisions commonly found in a will and the rules that apply to these provisions?

  • Incorporation by reference.
  • Disposition of remains or for funeral wishes.
  • No-contest clause.
  • Rule against perpetuities.
  • Sample rule against perpetuities clause.

Incorporation by Reference

Incorporation by reference is a general doctrine that sometimes allows a testator to refer to outside documents and incorporate their provisions into a will. Incorporation by reference is specifically authorized under Florida law (§§ 732.512 and 732.515, Fla. Stat. Ann.). Incorporation by reference is often used in Florida in the context of:

Pour over wills. In Florida, a pour over will can incorporate the terms of a trust agreement by reference. This means that the will can refer to the trust agreement and its terms and provisions and direct that those terms and provisions apply if the trust agreement is not in existence at the time of the testator’s death. To incorporate an existing trust agreement by reference, the will must both 1). manifest this intent, and 2). describe the trust agreement sufficiently to permit its identification (§ 732.512(1), Fla. Stat. Ann.).

Memoranda disposing of tangible personal property. A testator may reference in the will a separate writing that directs the disposition of tangible personal property. Under Florida law, a general reference to this separate writing creates a legally enforceable list, even if the testator creates or revises the list after executing the will, if the list: 1). Is referred to in an unrevoked will, 2). Is signed by the testator; and 3). Describes the items and beneficiaries with reasonable certainty ( § 732.515, Fla. Stat. Ann.).

Disposition of Remains or Funeral Wishes

Including specific burial, cremation, or other directions for the disposition of the testator’s remains in a will is permitted, but optional. Directions in a will or outside of a will regarding disposition of remains can be carried out before the will is admitted to probate (§ 732.804, Fla. Stat. Ann.).

No-Contest Clause

No-contest clauses are designed to prevent a beneficiary from contesting the dispositive provisions of a testator’s will. They typically provide that a contesting beneficiary and often the contesting beneficiary’s children and more remote issue are excluded as beneficiaries under the will if the contest is not successful.

No-contest clauses are not enforceable in Florida (§ 732.517, Fla. Stat. Ann.).

Rule Against Perpetuities

An interest in trust in Florida must vest within 360 years from the time the interest is created (see § 689.225, Fla. Stat. Ann.). For purposes of a trust created under the provisions of a will, the interest is created on the date of the testator’s death.

Sample Rule Against Perpetuities Provision

Maximum Duration of Trusts. Notwithstanding anything to the contrary contained in this Will, each trust created by this Will or by the exercise of any power of appointment conferred by this Will, unless earlier terminated according to the terms of this Will, shall terminate within the longest period of time that property may be held in trust to the fullest extent permitted under the laws of the State of Florida at the time of my death or such later time as may be allowed by law, from time to time. It is my understanding that, under current Florida law, the longest time period that any such property may be held in trust will be one day prior to the three hundred sixtieth (360th) anniversary of the date of my death. If my Trustee at any time combines and administers as one trust any trust created hereunder and any trust or trusts under any other instrument, such combined trust shall not continue beyond the earlier date on which either of such trusts would, without regard to such combination, have been required to terminate under the rule against perpetuities or other applicable law governing the maximum duration of trusts. If any trust (including a combined trust) would, but for the terms of this Paragraph, continue beyond such date, such trust shall nevertheless at that time terminate and the remaining property of such trust shall be distributed to the primary beneficiary of such trust, or, in the case of a trust for the benefit of multiple beneficiaries, as provided in the termination provisions of the Article which creates such trust.

Executors

What are the rules regarding executor appointments in your state?

  • The terminology that is used to identify the person who is in charge of the estate (referred to here as the executor).
  • Criteria for qualifying as an executor, including limitations on who a testator can name as executor.
  • Rules regarding compensation of executors.
  • Whether the drafting attorney can serve as executor.
  • Priority rules for appointment of executor if the named executor fails to qualify.
  • Who has authority to act when there are multiple executors?

Terminology Used to Identify Person In Charge of Estate

In Florida, the person in charge of the estate is referred to as the personal representative.

Qualification as Personal Representative

A personal representative in Florida must:

  • Be a resident of Florida at the time of the testator’s death.
  • Not have been convicted of a felony.
  • Be mentally and physically able to perform the duties of personal representative.
  • Be at least 18 years old.

(§§ 733.302 and 733.303, Fla. Stat. Ann.)

A person otherwise meeting the requirements for serving as a personal representative but who is not a Florida resident may still serve as a personal representative if that person is any of the following:

  • A legally adopted child or adoptive parent of the decedent.
  • A direct ancestor or descendant of the decedent.
  • A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent or a direct ancestor or descendant of any of these people.
  • The spouse of a person otherwise qualified to serve under the above rules.

(§ 733.304, Fla. Stat. Ann.)

If a desired nominee is not a Florida resident, counsel should take extra care in applying the relationship requirements which are specific, somewhat limited, and can lead to counterintuitive results in some circumstances (§ 733.304, Fla. Stat. Ann.). For example, a decedent’s brother-in-law can serve as personal representative if the brother-in-law has that status because the brother-in-law is married to the decedent’s sibling, but a decedent’s brother-in-law cannot serve as personal representative if the brother-in-law has that status because the brother-in-law is the brother of the decedent’s spouse.

The following entities may also act as representatives of the estate: 1). Any trust company incorporated in Florida; 2). All state banking corporations authorized to exercise fiduciary powers in Florida; 3). All state savings associations authorized to exercise fiduciary powers in Florida; and 4). All national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida (§§ 660.41 and 733.305, Fla. Stat. Ann.).

Compensation of Personal Representatives

Individual personal representatives are generally entitled to compensation determined by a statutory fee schedule that compensates the personal representative based on a percentage of the compensable value of the estate that is:

  • The inventory value of the probate estate assets.
  • The income on those assets during estate administration.

Personal representatives are entitled to additional allowances for extraordinary services, such as the sale of property. The statutory fee ranges from 3% on the first million dollars of assets to 1.5% for assets in excess of ten million dollars. The statutory fee is presumed reasonable for personal representatives but is not mandatory and can be overridden by an express provision in the will. (§ 733.617, Fla. Stat. Ann.)

Regardless of the number of personal representatives, unless the will provides otherwise:

  • In estates with a compensable value of less than $100,000, all personal representatives must share one full commission.
  • In estates with a compensable value of $100,000 or more, no more than two commissions can be paid when there is more than one personal representative.

(§ 733.617(5), Fla. Stat. Ann.)

In most circumstances, the personal representative can renounce compensation entirely or can renounce the express compensation under the will and opt instead to take the statutory personal representative fee (§ 733.617(4), Fla. Stat. Ann.).

The will may also provide that some or all of the named personal representatives are not entitled to commissions, which is common where the will names family members as personal representative.

Corporate personal representatives typically expect higher compensation than individual personal representatives and corporate fiduciary compensation is typically set by a commission schedule provided by the corporate fiduciary and referenced in the will. Corporate fiduciary fee schedules are sometimes negotiable, depending on the circumstances. A corporate fiduciary is entitled to fees under its commission schedule if the will provides for compensation based on the personal representative’s regularly published schedule of fees in effect at the decedent’s death (§ 733.617(4), Fla. Stat. Ann.).

Drafting Attorney as Personal Representative

There is no rule in Florida prohibiting a drafting attorney from acting as personal representative for a client’s estate. Attorneys also acting as personal representatives are entitled to both fees for legal services and compensation as personal representatives (§ 733.617(6), Fla. Stat. Ann.).

Failure of Named Personal Representative to Qualify

When a will does not nominate a personal representative or none of the persons nominated are able to serve, the court has the authority to appoint someone not nominated in the will in the following order of preference:

  • The person selected by a majority in interest of the persons entitled to the estate.
  • A beneficiary under the will. If there is more than one beneficiary wishing to act, the court may select the one most qualified.

(§ 733.301(1)(a), Fla. Stat. Ann.)

Multiple Personal Representatives

The authority of co-personal representatives to act depends on when the will was executed:

  • If the will was executed before October 1, 1987, action requires unanimous consent of all personal representatives.
  • If the will was executed on or after October 1, 1987, action requires agreement of a majority of personal representatives.

The provisions included in a will can override those default provisions and control joint fiduciaries’ authority to act. (§ 733.615, Fla. Stat. Ann.)

Trustees

What are the rules regarding appointment of trustees for testamentary trusts in Florida?

  • Criteria for qualifying as a trustee.
  • Rules regarding compensation of trustee.
  • Priority rules for appointment of trustee if the named trustees fail to qualify.
  • Who has authority to act when there are multiple trustees.

Qualification as Trustee

There are no statutory requirements for an individual to qualify as trustee in Florida as there are for qualifying as personal representative (§§ 733.302, 733.303, and 733.304, Fla. Stat. Ann. However, a co-trustee or beneficiary may petition the court to remove a trustee or the court may remove a trustee on its own initiative if:

  • The trustee has committed a serious breach of trust.
  • Co-trustees fail to cooperate to a sufficient degree that it substantially impairs the trust administration.
  • The trustee is unfit, unwilling, or has failed to administer the trust effectively and the court determines that removal is in the best interest of the beneficiaries.
  • There is a substantial change of circumstances or all qualified beneficiaries request removal, removal is in the best interest of all beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable replacement is available.

(§ 736.0706, Fla. Stat. Ann.)

The qualified beneficiaries of a trust at any given time are the current or permissible recipients of trust income or principal:

  • At that time.
  • If the interests of the current permissible recipients terminated without causing the trust to terminate at that time.
  • If the trust terminated under its terms at that time.

(§ 736.0103(16), Fla. Stat. Ann.)

To act as a corporate trustee in Florida, an entity must:

  • Be a bank, association, or trust company incorporated under Florida law and having trust powers.
  • Be a bank, association or trust company resulting from an interstate merger with a Florida bank and having trust powers ( § 658.2953, Fla. Stat. Ann.).
  • Be a national banking association or federal association authorized and qualified to exercise trust powers in Florida.

(§ 660.41, Fla. Stat. Ann.)

Compensation of Trustee

Absent a provision in the will or an outside agreement specifying trustee compensation, a trustee is entitled to reasonable compensation for acting as trustee under Florida law (§ 736.0708, Fla. Stat. Ann.).

If it is likely that an individual trustee is to be appointed and is to receive compensation, counsel should consider with the client whether to include a specific trustee compensation formula or amount to avoid application of the non-specific reasonable compensation standard.

A corporate trustee typically takes compensation under its fee schedule.

Even if the will specifies the trustee’s compensation, the compensation may be adjusted if:

  • It is unreasonably high or low.
  • The duties of the trustee are substantially different from what the client contemplated when the client set the compensation.
  • The trustee rendered additional services to the trust in addition to the regular duties of a trustee. For example, if the trustee is also an accountant and renders accounting services, the trustee may be compensated for accounting services in addition to trustee services.

(§ 736.0708(2)-(3), Fla. Stat. Ann.)

The will may also provide that some or all of the named trustees are not entitled to commissions, which is common where family members are named as trustee.

Failure of Named Trustee

The terms of the will typically dictate both the method for appointing a successor trustee and the identity of successor trustees (§§ 736.0105(2) and 736.0704(3)(a), Fla. Stat. Ann.). If there is no mechanism for appointing a successor trustee in the will and all named successors cannot serve, the trust administration must be delayed, because either:

  • The qualified beneficiaries have to unanimously agree on a successor.
  • A court has to appoint a successor to fill the void.

(§ 736.0704(3), Fla. Stat. Ann.)

Multiple Trustees

Unless otherwise provided in the will, when there is more than one trustee, the trustees act by majority decision. If a vacancy occurs, the remaining co-trustees may act for the trust. Co-trustees must participate in the performance of the trustee’s function unless:

  • They are unable to perform because of absence, illness, disqualification, or other temporary incapacity.
  • They have properly delegated the performance of the function to a co-trustee under the terms of the will or applicable law. However:
  • a trustee may not delegate the performance of any function the testator reasonably expected the co-trustees to perform jointly; and
  • A trustee may delegate investment functions ( 518.112, Fla. Stat. Ann.).

(§ 736.0703, Fla. Stat. Ann.)

Guardians

What are the rules regarding appointment of guardians for minor children by will in Florida?

  • Criteria for qualifying as a guardian.
  • Whether a guardianship nomination in the will is binding or persuasive.
  • At what age the guardianship terminates.

Qualification as Guardian

A guardian must meet the following requirements:

  • Be 18 years of age.
  • Be a resident of Florida or be related to the minor child.
  • Have no felony conviction.
  • Have not been found guilty of any act involving harm or threat to a child, including a sexual offense.

(§ 744.309, Fla. Stat. Ann.)

Guardianship Binding or Persuasive

Guardianship nominations are persuasive. Nominating a guardian in a will does not guarantee that the named guardian is appointed. In making its ultimate decision, assuming that the named guardian meets the qualifications for acting, the court is likely to give preference to the named guardian in the absence of evidence that another individual is likely to be better for the child. (§ 744.312(3)(c), Fla. Stat. Ann.).

Termination of Guardianship

A guardianship ends when the child attains age 18 (§ 744.521, Fla. Stat. Ann.).

Changes to Will After Execution

What are the rules regarding changes to a will after it is executed?

  • How a will can be modified after it is executed?
  • How a will can be revoked after it is executed?
  • Whether a previously revoked will can be reinstated, and if so, how?

Modification of a Will

In Florida, wills are fully revocable until the testator dies. There are generally only two options for modifying an existing will during the testator’s life, by codicil or new will.

A codicil amends an existing will. A testator may add, alter, substitute, or delete any part of a will by executing a codicil. A testator must execute a codicil in the same manner as a will to be valid. (§ 732.502(5), Fla. Stat. Ann.) The will and all codicils are considered a single instrument and are read together (see Waterbury v. Munn, 32 So. 2d 603 (Fla. 1947) and Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991)). When an existing will needs only a few simple changes, a codicil is typically appropriate.

Using a codicil to make modifications to a will provides a paper trail of the testator’s changing wishes. In a probate proceeding, both the will and the codicil are available for inspection by the beneficiaries and any other person entitled to notice of administration (§ 732.901, Fla. Stat. Ann., FL ST PROB Rule 5.201(c), and FL ST PROB Rule 5.240(c)). This includes:

  • The decedent’s surviving spouse.
  • All beneficiaries.
  • Persons entitled to exempt property.
  • The trustee of the decedent’s revocable trust.
  • In certain circumstances, the qualified beneficiaries of the decedent’s revocable trust.

(FL ST PROB Rule 5.240(a).)

If a testator reduces a beneficiary’s share by codicil, the beneficiary has access, as part of the routine probate process, to the original will and the codicil that reduces the testator’s share. If, on the other hand, the testator executes an entirely new will that either reduces a beneficiary’s share or omits the beneficiary entirely, that beneficiary:

  • Does not have access to the prior will as part of the routine probate process.
  • May not necessarily be aware of the reduction or elimination of the beneficiary’s interest.

It is often preferable to prepare a new will, rather than a codicil, particularly if there is any reason to believe that any of the changes that the testator is making may cause later disputes or challenges.

Revocation of a Will

The testator may revoke a will by:

  • Executing a later will (or a later instrument executed with will formalities) declaring the revocation.
  • Executing a later will to the extent that it is inconsistent with the prior will.
  • Intentionally burning, cancelling, tearing, or obliterating it. This can also be done by another person:
  • in the testator’s presence; and
  • at the testator’s direction.

(§§ 732.505 and 732.506, Fla. Stat. Ann.)

Destruction of a photographic copy of a will with the intent to revoke the original does not effectively revoke the will (In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993)).

For revocation by destruction to be valid, the testator must intend to revoke the will (§ 732.506, Fla. Stat. Ann.). Revoking a will also revokes all codicils to the will (§ 732.509, Fla. Stat. Ann.).

Reinstatement of a Will

A testator can republish a will by either:

  • Re-executing the will or executing a codicil that republishes the will ( 732.511, Fla. Stat. Ann.).
  • Executing a codicil which refers to the will ( 732.5105, Fla. Stat. Ann.).

If the testator revokes a will that itself revoked a former will, it does not revive the former will (§ 732.508(1), Fla. Stat. Ann.). However, if the testator revokes a codicil to a will, in the absence of evidence to the contrary, it is presumed that the testator intended to reinstate the prior provisions of the will as if the revoked codicil had never been executed (§ 732.508(2), Fla. Stat. Ann.).

If the testator makes a new will that revokes a prior will and the new will is determined to be invalid, the doctrine of dependent relative revocation may apply to revive the prior will. The doctrine of dependent relative revocation presumes:

  • The testator did not intend to die without a will.
  • The testator only revoked the old will on the condition that the new will is valid.

(Stewart v. Johnson, 194 So. 869, 870 (Fla. 1940).)

Special Circumstances Regarding Gifts or Recipients

  • A beneficiary does not survive the testator.
  • A gift is not owned by the testator at the testator’s death.
  • There are not enough assets passing through the will to satisfy all the gifts.
  • The gifted property is encumbered.
  • The testator and a beneficiary or fiduciary to which the testator was married when the will was executed are no longer married when the testator dies.
  • The testator gets married after the will is executed.
  • A child is born after the will is executed.
  • A beneficiary causes the testator’s death.
  • The testator and a beneficiary die at the same time.

Beneficiary Does Not Survive

If the will provides for what happens if a beneficiary predeceases the testator, the provision in the will controls (§§ 732.603 and 732.604, Fla. Stat. Ann.). If the will does not provide for what happens if a beneficiary predeceases the testator:

  • If the beneficiary is a grandparent or a descendant of a grandparent of the testator, the gift passes to the beneficiary’s surviving descendants ( 732.603, Fla. Stat. Ann.).
  • If the beneficiary is not a grandparent or descendant of a grandparent of the testator, the gift lapses and passes either:
  • by the residue of the estate if the gift is a pre-residuary gift; or
  • to the remaining residuary beneficiaries in proportion to their original shares of the residue, if the gift is a residuary gift and there are other residuary beneficiaries.

(§ 732.604, Fla. Stat. Ann.)

Gift Not Owned By Testator at Death

If a testator makes a disposition of a specific item of property in the testator’s will but disposes of that item before death, the bequest is generally extinguished, that is, it adeems. In this case, the beneficiary receives neither the gift, nor its equivalent value unless the property can be traced to existing assets, such as a replacement property or the specific sale proceeds, and evidence reflects that the testator did not intend the disposal of the property to alter the beneficiary’s gift. (In re Estate of Budny, 815 So. 2d 781, 782 (Fla. 2d DCA 2002).

However, there are exceptions to this general rule. For example, ademption does not apply and the beneficiary receives a distribution if:

  • Insurance proceeds resulting from the loss of the specified item are received after the testator’s death, in which case the beneficiary is entitled to those proceeds.
  • Proceeds are traceable from the sale of property by a guardian of an incapacitated testator, in which case the beneficiary is entitled to those proceeds.
  • The testator included a specific devise of securities in which case the beneficiary is entitled to:
  • as much of the devised security as is a part of the estate when the testator dies;
  • any additional or other securities of the same entity owned by the testator as a result of action initiated by the entity;
  • securities of another entity owned by the testator because of a merger or other reorganization initiated by the entity; and
  • securities of the same entity acquired because of a reinvestment plan.

(§§ 732.605 and 732.606, Fla. Stat. Ann.)

Not Enough Assets

If an estate does not have sufficient assets to pay its obligations and all dispositions under the will, the gifts made to beneficiaries abate (that is, are reduced or eliminated) in the following order:

  • Intestate shares in property not disposed of by the will.
  • Residuary dispositions.
  • General dispositions.
  • Specific dispositions.

(§ 733.805(1), Fla. Stat. Ann.)

The statutory order of abatement is a default rule. The testator can change the order of abatement in the testator’s will. (§ 733.805, Fla. Stat. Ann.)

Gifted Property Encumbered

Unless the will provides otherwise, a beneficiary receiving a gift of real property takes the property subject to any mortgage or lien on the property (§ 733.803, Fla. Stat. Ann.).

Effect of Divorce

If the testator divorces or the testator’s marriage is annulled after the testator has made a will, unless the will provides otherwise, all provisions of the will that affect the former spouse become void, including fiduciary appointments and bequests. The former spouse is treated as having predeceased the testator for purposes of the will provisions. (§ 732.507, Fla. Stat. Ann.)

Effect of Marriage

A surviving spouse is entitled to a pretermitted spouse’s share if:

  • The spouse did not waive the right to inherit by agreement.
  • The spouse is not provided for in the will.
  • The will does not express an intention to exclude the spouse.

(§ 732.301, Fla. Stat. Ann.)

The pretermitted spouse’s share is equal to a spouse’s intestate share, which can range from one-half of the intestate estate to all of the intestate estate, depending on whether the decedent or the decedent’s spouse have children from a different relationship (§§ 732.102 and 732.301, Fla. Stat. Ann.).

After-Born Child

If a child is born or adopted after a will is signed and is not provided for in the will, that child is treated as a pretermitted child unless either:

  • It appears from the will that the omission was intentional.
  • The testator:
  • had at least one child when the will was executed;
  • gave substantially all of the estate to the other parent of the omitted child; and
  • that parent survived and is entitled to take under the will.

(§ 732.302, Fla. Stat. Ann.)

If a child is treated as a pretermitted child, that child’s share is determined under the intestacy statutes (§§ 732.103 and 732.302, Fla. Stat. Ann.).

Beneficiary Causes Testator’s Death

A beneficiary that unlawfully and intentionally kills or participates in procuring the death of the testator forfeits any interest that the beneficiary may have in the testator’s estate and the estate passes as if that beneficiary predeceased the testator (§ 732.802, Fla. Stat. Ann.).

Simultaneous Death

When no survivorship provision is included in the will, if title to property depends on whether a person survived the testator and there is insufficient evidence that the person died before or after the testator, the property is disposed of as if the testator survived (§ 732.601, Fla. Stat. Ann.).

Lost Wills

If an original will is lost or inadvertently destroyed, a copy may be admitted to probate. The specific content of the will must be proved by either:

  • The testimony of two disinterested witnesses.
  • Providing a correct copy of the will that is proved by one disinterested witness.

(§ 733.207, Fla. Stat. Ann.)

Rules of Intestacy

How does property passes if there is no will or if the terms of the will distribute assets according to the laws of intestacy in your state (who are the testators heirs)?

If there is no will or if the terms of the will distribute assets according to the laws of intestacy, the estate assets are distributed according to the statutes governing intestate succession (§§ 732.102, Fla. Stat. Ann. to 732.111, Fla. Stat. Ann.).

Under the Florida intestacy statutes, if a decedent dies leaving:

  • A surviving spouse and no issue, all of the intestate property goes to the surviving spouse.
  • A surviving spouse and issue, all of which are issue of both the decedent and the surviving spouse, all of the intestate property goes to the surviving spouse.
  • A surviving spouse and issue, one or more of which are issue of the decedent only or of the spouse only, one-half of the intestate property goes to the surviving spouse and the balance goes to the testator’s issue.
  • Surviving issue and no spouse, all of the intestate property goes to the surviving issue.
  • No spouse or any issue, the next in line under the intestacy statutes are, in order of priority, the decedent’s parents, the issue of the decedent’s parents, siblings and issue of deceased siblings, grandparents, and the issue of the decedent’s grandparents.

(§§ 732.102 and 732.103, Fla. Stat. Ann.)