Estate Planning · Florida
Wills and Living Wills in Florida
Written by Blake Stewart | Florida Bar No. 84716 | Admitted 2010 | Florida Bankruptcy & Estate Planning Attorney
A Last Will and Testament directs the disposition of your probate assets after death and may nominate a personal representative and a preferred guardian for minor children. A Living Will is a separate advance directive that addresses life-prolonging treatment if you later cannot communicate. Neither document replaces the other — both belong in a complete Florida estate plan.
What Is a Last Will and Testament in Florida?
A Florida Last Will and Testament is a written legal document that takes effect at death. It controls only probate assets — property that does not already pass through a trust, a beneficiary designation, a payable-on-death or transfer-on-death mechanism, or survivorship ownership. For those assets, a will can:
- →Direct the distribution of probate assets to named beneficiaries
- →Identify specific bequests of personal property
- →Nominate a personal representative to administer the estate
- →Nominate a preferred guardian for minor children, subject to court appointment
- →Establish testamentary trusts to manage assets for beneficiaries over time
- →Provide instructions for property that does not otherwise pass outside probate
Without a valid will, Florida's intestacy statutes determine who inherits your probate estate — and the result may not reflect your wishes or your family's circumstances.
What a Florida Will Does Not Do
Understanding a will's limits is as important as understanding what it covers. A Florida will:
- →Does not avoid probate — it guides the probate process, not around it
- →Does not control property already owned by a revocable trust
- →Usually does not override a valid beneficiary designation on a life insurance policy, retirement account, or similar asset
- →Usually does not control jointly owned property held with survivorship rights
- →Does not authorize another person to act on your behalf during your lifetime
- →Does not make health care decisions — that is the role of a Health Care Surrogate Designation and a Living Will
Florida Will Execution Requirements
Florida Statutes § 732.502 sets out the requirements for a valid will. The will must be in writing. The testator must sign at the end, or direct another person to sign in the testator's presence. That signing or acknowledgment must occur in the presence of at least two attesting witnesses. The witnesses must then sign in the presence of the testator and in the presence of each other.
Notarization is not ordinarily required merely to make a properly witnessed Florida will valid. A will that satisfies the two-witness execution requirements is legally effective without a notary.
A self-proving affidavit under Fla. Stat. § 732.503 is a separate sworn statement — signed by the testator and witnesses before a notary — that can be attached to the will. It simplifies proof of the will during probate by eliminating the need to locate and examine the attesting witnesses after the testator's death. The notarization in a self-proving affidavit supplements the two-witness execution requirements; it does not replace them.
Guardian Nominations for Minor Children
A will can nominate a preferred guardian for minor children. Florida also permits a separate written preneed-guardian declaration under Fla. Stat. § 744.3046, which allows a parent to designate a guardian in a document independent of the will.
In either case, the court makes the final appointment. A nomination is a strong expression of preference that Florida courts take seriously, but the court may reject a nominee who is not qualified or whose appointment would not serve the child's best interests.
A trust can manage inherited assets for children — holding funds until a child reaches a specified age or milestone — but a trust does not itself appoint the child's guardian. Guardianship and asset management are separate legal questions, and a complete plan addresses both.
What Is a Living Will in Florida?
A Living Will is a health care advance directive — a separate document from a Last Will and Testament — that provides instructions about life-prolonging procedures if you later cannot communicate your wishes. Under Florida law, a Living Will addresses treatment decisions when a person has:
- →A terminal condition
- →An end-stage condition
- →A persistent vegetative state
Under Fla. Stat. § 765.302, a Florida Living Will must be signed by the principal in the presence of two subscribing witnesses. At least one witness must be neither the principal's spouse nor a blood relative.
A Living Will provides treatment instructions. It is distinct from a Health Care Surrogate Designation, which identifies a person authorized to make health care decisions on your behalf. Both documents serve different functions, and most complete Florida estate plans include both.
Will vs. Trust in Florida
A will directs probate assets. A properly funded revocable trust can allow trust-owned assets to pass outside routine probate — but a trust does not eliminate the usefulness of a will. A pour-over will is a standard companion to a revocable trust: it captures any probate assets that were not transferred into the trust during your lifetime and directs them into the trust at death.
Not every Florida family needs a trust. The correct structure depends on the nature and title of your assets, your beneficiaries, incapacity concerns, and your family's circumstances. Some clients are well served by a will alone; others benefit from a trust-centered plan. That determination is worth making deliberately rather than by default.
Frequently Asked Questions
Does a will avoid probate in Florida?
No. A will does not avoid probate — it is a set of instructions that guides the probate process. Assets that pass through a properly funded revocable trust, a valid beneficiary designation, a payable-on-death or transfer-on-death mechanism, or survivorship ownership typically pass outside routine probate regardless of what a will says. A will controls only probate assets.
Does a Florida will have to be notarized?
Notarization is not ordinarily required to make a properly witnessed Florida will valid under Fla. Stat. § 732.502. However, a self-proving affidavit under Fla. Stat. § 732.503 — which does require notarization — can simplify proof of the will during probate by eliminating the need to locate and examine the attesting witnesses. The notarization in a self-proving affidavit supplements the two-witness execution requirements; it does not replace them.
How many witnesses does a Florida will require?
Florida law requires at least two attesting witnesses. The testator must sign at the end of the will (or direct another person to sign in the testator's presence), and that signing or acknowledgment must occur in the presence of both witnesses. The witnesses must then sign in the presence of the testator and in the presence of each other.
Can I nominate a guardian for my children in my will?
Yes. A Florida will can nominate a preferred guardian for minor children. Florida also permits a separate written preneed-guardian declaration under Fla. Stat. § 744.3046. In either case, the court makes the final appointment and may reject a nominee who is not qualified. A trust can manage inherited assets for children but does not itself appoint the child's guardian.
What happens if I die without a will in Florida?
Florida's intestacy statutes determine who inherits your probate estate. The result depends on whether you are married, have children, and whether those children are shared with your surviving spouse. The outcome may not match your wishes — and it cannot account for the specific people or organizations you would have chosen.
What is the difference between a will and a living will?
A Last Will and Testament takes effect at death and directs the disposition of probate assets. A Living Will is a health care advance directive that takes effect during your lifetime if you have a terminal condition, end-stage condition, or persistent vegetative state and cannot communicate your wishes. The two documents serve entirely different purposes and neither replaces the other.
How often should I update my will?
Review your will after major life events: marriage, divorce, the birth or adoption of a child, the death of a named beneficiary or personal representative, a significant change in assets, or a move to a different state. Florida law has specific rules about the effect of divorce on will provisions, but relying on those rules is not a substitute for a current, intentional document.
Do I still need a will if I have a revocable trust?
Yes. A pour-over will is a standard companion to a revocable trust. It captures any probate assets that were not transferred into the trust during your lifetime and directs them into the trust at death. Without a will, those assets pass under Florida's intestacy statutes rather than according to your trust's terms. A will is also the document used to nominate a guardian for minor children.
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