How to Ensure Your Will is Valid

Every year, numerous estates became mired in conflict or litigation owing to an error in the decedent’s Will. Needless to say, when it comes to something as important as an estate plan, you cannot afford to have such a foundational document be found invalid by the probate court. Whether you already have a Will, or plan on making one soon, take the following information into account to determine if it is valid, and consider hiring a Jurado & Farshchian Estate Planning Attorney to make sure your Will has the force of law behind it.

The Consequences of an Invalid Will

In the event that someone dies without a Will, or their Will is found invalid, their estate is described as “intestate” and thus falls under default Florida rules. This means that the probate court overseeing the administration of the estate will determine how the assets will be distributed. The court will prioritize the payment of taxes, claims, debts, and probate fees before distributing the remaining “residue” to your next of kin as determined by state intestacy laws. For example, if you leave behind a spouse but no children, the spouse automatically gets the entire estate. Things get more complex in situations where you have children from a previous marriage. Unless Florida intestacy rules happen to perfectly align with your final wishes, you want to make sure you have a valid Will in place to ensure that your assets go to the specific heirs that you wish to have them and that you get to select the person who will be the personal representative/executor of your Will.

The Minimum Requirements of a Valid Will

Florida does not allow oral Wills or handwritten Wills that have no witness signatures. Under Florida law, in order for a Will that is executed by a Florida resident to be valid, the Will must be in writing and the person making the Will (known formally as the “testator”) must be at least eighteen years old and of sound and competent mind. This means the testator must know the nature and purpose of the document they are signing, have knowledge of what assets they are bequeathing and to whom, and understand the manner in which the distribution is to occur. If the testator is determined to have been mentally or psychologically impaired at the time he or she executed the Will – to the point that the he or she did not understand the contents of the document being signed – the Will may be found to be invalid by the court.

A Will must also be properly signed and executed, namely by having the testator sign the last page in the presence of two witnesses, who must each sign the document attesting to the time and place in which they saw the execution. The witnesses must also be legal adults of sound and competent mind. (Alternatively, someone else may sign the testator’s name in their presence and by their direction.)

Aside from the requirements set forth above, Florida law does not set forth any specific qualifications regarding the contents of a Will: in theory, it can be as short or as simple as you want. However, it is always better to be as comprehensive, clear, and detailed as necessary to make sure there are no omissions or ambiguities that may undermine the validity of the Will. This is especially true of estates that are large, complex, and/or have multiple beneficiaries.