WILLS
General Information
In the simplest of probate terms, people can die two ways: intestate (without a Will) and testate (with a Will). This page deals with the later. Laid out here are the Secondary Sources, Legislative Law, Case Law, Court Rules, and Forms as they pertain to Wills and the probate, thereof. While probate itself is a separate issue from actual Will legitimacy, I have included some of these documents because they allow researchers to see why the other requirements exist. This page is designed to allow investigators to see a broad, basic view of Wills and to find resources that will point them in the right direction for their individualized projects. The following discussion focuses mainly on Will formalities and Testamentary Capacity.
What is a Will and How Can It be Challenged?
A Will is basically a document that declares what a Testator's (i.e., the person to whom the Will belongs) final wishes are. It can be modified by a Codicil or revoked by a later Will. For a Will to be valid in Florida it cannot be holographic (i.e., a handwritten Will) and must be executed (i.e., signed) by the Testator and witnesses under strict formalities.
Once a Will has been submitted to probate, there is a plethora of ways that it can be challenged. It can be challenged on the grounds of improper execution, lack of Testamentary Capacity ("Capacity"), Insane Delusion, Undue Influence, etc. Because Florida is a strict compliance state, any variance from the technicalities dictated in Fla. Stat. § 732.505 can result in a Will being declared void and the estate passing through the Intestacy Statutes ("Statutes"). Besides proving these formalities, if a Will is challenged on the grounds of Testamentary Capacity, then it must be shown that the Testator had the required Capacity at the time the Will was signed.
Under § 732.502, a Will must be signed by the Testator "at the end." If a Testator is unable to do so, then someone else may sign the Testator's name at his/her direction and in his/her presence. Oddly, the witnesses (there must be at least two) do not have to actually see this signing occur. If they do not see the Testator sign, then being told by the Testator that he/she previously signed the Will or directed someone to sign his/her name is considered sufficient. Witnesses, themselves, MUST sign the Will "in the presence" of the Testator AND each other.
With this statute, the main points of contention are: What do "at the end of the Will" and "in the presence of" mean? Generally speaking, "at the end of the Will" is usually interpreted as signing where it says "Testator's Signature" and not in the middle nor at the beginning of the Will. However, there is some case law supporting the concept of signing at the "logical end." For instance, if the Testator signs at the Attestation Clause where the witnesses are supposed to sign, it is after the main body of the Will, so it may be the "logical end." This is a fact specific analysis.
"In the presence of" has two interpretations. The "Line-of-Sight" interpretation requires that the witnesses be within the line-of-sight of both the Testator and each other at the time of signing. The other interpretation does not necessarily require the witness to see everything, merely to be aware that the other people are signing and have signed. Because of its strict compliance status, Florida courts follow the "Line-of-Sight" doctrine, in that they require the witnesses to actually SEE the other sign the document with the Testator present.
When it is determined that a Will has been properly executed, the next question may be "Did the Testator have Capacity?" Testamentary Capacity is defined as being of "sound mind" and is always measured at the time of the SIGNING, not before the signing nor afterwards (this allows someone who has been declared incompetent to have a "lucid moment" and sign a Will, or for a person to be declared incompetent after the signing and not have it affect the legality of the instrument). To determine whether or not a person had the required Capacity courts ask: (1) was the Testator capable of generally understanding the extent of his/her estate (i.e., did the person know that he/she had bank accounts, stocks, bonds, and property?); (2) was the Testator aware of who would naturally inherit his/her estate without a Will (i.e., was the Testator aware that he/she had children, siblings, or living parents and was he/she aware of those people's names?); and (3) did the Testator generally understand the practical effect of the Will that he/she was signing (e.g., did the Testator understand that he/she was effectively disinheriting his/her children in favor of his/her favorite charity?)? Depending on the situation, these questions are taken as a whole and do not necessarily have equal weight.
If neither of these two challenges apply, then Insane Delusion, Undue Influence, etc. should be investigated to determine whether or not the Will is valid. However, this is a discussion for another day and possibly a different LibGuide. All that the person just jumping into this hotbed need know is that a Will must be properly executed to be valid and challenging a Will is possible, but further fact-specific research is required.
HOMESTEAD
Under the Florida Constitution ("Constitution"), both men and women (i.e., competent adults) have a qualified right to devise their property as they see fit. This means that people may devise their assets to practically anyone they want, unless the State of Florida ("State") has a legitimate government interest in stopping a particular type of devise that is reasonably related to that restraint. Because of the State's interest in seeing that the Surviving Spouse ("Spouse"), minor children and family of a Decedent are not rendered homeless by a property owner's untimely demise, the government can and has used its qualified power to place a restraint on the devise of Homestead property.
With Homestead, the government has decided that if the Decedent has a minor child, then the property cannot be devised to anyone, pure and simple. Until that child reaches the age of majority, the Surviving Spouse will always receive either a life-estate in the property or 50% of it in fee simple and the minor child (and any other children) will receive either a vested remainder in the property or the remaining 50%. This ensures that any minors (for whom the state could end up financially responsible) have been provided for.
The restrain on devise loosens a little bit, if there are no minor children. If this is the case and there is a Spouse, then the Homestead may be completely devised to the Spouse in fee simple. If there is any other type of devise and there is no Spousal Waiver, then the devise is declared void and the property passes as if there had been no devise at all (please see Kelley's Homestead Paradigm). This restriction prevents the Spouse from becoming homeless and needing to rely on the State.
Finally, if there is no minor child nor a Spouse, then the Homestead may be freely devised (i.e., the owner may leave the property to whomsoever he/she chooses). However, this is where another protection for a Decedent's family is built in (though it is not required at this point). If the Homestead is left to a friend or someone else who does not qualify as an "Heir-at-Law" ("Heir") under the Intestacy Statutes, then the exemption is lost and the property may be sold to settle the estate's debts. Nevertheless, if the Homestead is left to an Heir, then the exemption remains intact and the property cannot be sold, thereby protecting the Decedent's extended family, as well.
All of this presumes that the creditors do not meet one of the Exemption Exceptions discussed elsewhere on this LibGuide. However, even if the creditors do qualify, the main goal of this restriction on devise is to protect the family of a Decedent from losing its second-most valuable asset, too: a legitimate government interest.
MANUALS / TREATISES / TEXTBOOKS
Asset Protection in Florida : KFF 220.A97 2017
This book is available through the Ave Maria School of Law Library.
Basic Estate Planning in Florida (FLCLE): Fiduciaries : Ave Maria School of Law
§ 12.2 Selection of Fiduciaries : Discussion of who may be picked and basic concerns that need to be considered; discusses the role of the Personal Representative.
§ 12.5 Fiduciary Succession : What can happen when the Fiduciary is not available to perform his/her duties.
§ 12.8 Liability of Fiduciaries : Discussion of when and when not a Fiduciary can be held responsible for a decision.
Belcher's Redfearn Wills & Administration in Florida : Ave Maria School of Law
Chapter 3 Wills and Other Testamentary Instruments : Provides links to the chapter sections.
§ 3.4 Wills : What a Will is and what it may do.
§ 3.5 Codicils : What a Codicil is and what it may do.
§ 3.9 Testamentary Capacity : Discussion about what can interfere with a person's Testamentary Capacity.
§ 3.10 Revocation and Revival (of Will) : Disscussion of how a Will can be revoked and revived in Florida.
Chapter 5 Elective Share : Provides links to the chapter sections that discuss the Elective Share and the Surviving Spouse's rights to it.
Estate Planning in Florida -- Florida Practice Series
§ 8.2 Requirements for (Will) Execution : Level of compliance required for Will Execution.
§ 8.3 Signature of Testator : Requirements for Testator's signature on Will.
§ 8.4 Witnesses to a Will : Basic statement of who needs to see a Will signed.
§ 8.12 Self-Proof of Will : Basic statement about Self-Proving Affidavits.
§ 8.13 Form: Self-Proof of Will : The Self-Proving Affidavit.
§ 8.15 Execution of a Codicil : How a Codicil must be executed (i.e., signed) to be valid.
§ 8.19 Definition (Incorporation by Reference) : Provides a definition of "Incorporation by Reference" and links to related materials.
§ 13.04 Allocation by Will or Trust : Brief discussion of the testator's right give away his/her property.
Family Estate Planning Guide: Drafting Wills : Ave Maria School of Law
Guidance on drafting Wills and Codicils.
Florida Elder Law : KFF 80.W447
This book is available through the Ave Maria School of Law Library.
Florida Elder Law -- Florida Practice Series
Chapter 7 - Wills : Provides overview and links to the sections of this chapter.
§ 7.1 Purpose of a Will : States a general purpose for a Will.
§ 7.3 Who May Make a Will : Provides general guidelines for Florida Will capacity requirements.
§ 7.18 Marital Election : Brief discussion of the Surviving Spouse's right to the Elective Share.
§ 7.24 Personal Representative's Duties : Brief overview of what is required of the Personal Representative.
Florida Probate Code Manual: Chapter 2 Will: Execution, Revocation, Contents : Ave Maria School of Law
§ 2.02 Definition of a Will : Briefly defines what a Will is in relation to Florida Statutes and case law.
§ 2.04 Testamentary Capacity : In-Depth discussion of Testamentary Capacity and its Elements.
§ 2.05 Effect of Fraud, Duress, Undue Influence, and Mistake : In-Depth discussion of these doctrines and how they relate to Wills.
§ 2.06 Formalities of Execution : In-Depth discussion of how a Will MUST be signed in order for it to be valid.
§ 2.07 Self-Proved Wills : Provides a definition of "Self-Proved Wills," discusses their benefits, and provides a form for the required affidavit.
§ 2.09 Incorporation by Reference : Discusses how and when another document may become part of a valid Will.
§ 2.13 Revocation by Physical Act : In-Depth discussion of how and when a physical act will legally revoke a Will.
§ 2.17 Republication and Reexecution : How a Will may become valid again after it has been revoked.
§ 2.18 Revocation by Change in Marital Relations, Births, or Adoptions : How these life-changes do and do not affect a Will.
Florida Jurisprudence 2d: Decedent's Property: Testate Succession : Ave Maria School of Law
§ 99 Testate Succession and Disposing of Property by Will : Definition of "Will" and discussion of when people can give their property away by a Will.
§ 102 Operation and Effect of Will : Discussion of what controls when a Will is ambiguous.
§ 110 Testamentary Power and Capacity (of Testator) : Discussion of level of testamentary capacity Testator is required to have.
§ 138 Property that May be Devised : Discussion of what property may be given away by Will and when.
§ 155 Codicils : Generally, what a Codicil is and its relation ot a Will.
§ 159 Fraud, Duress, Undue Influence, and Mistake : General description of this doctrine and how it relates to Wills with access to more in-depth discussions.
§ 162 What Constitutes Undue Influence : Discussion of Undue Influence and its elements.
§ 206 Pretermitted Share of Surviving Spouse : Discussion of Florida's Pretermitted Spouse Doctrine and the public policy surrounding it.
§ 208 Pretermission of Child : Discussion of when a child is pretermitted and that child's rights under the Will.
§ 733 Elective Share of Surviving Spouse : Defines the Surviving Spouse's right to the Elective Share and the statutory law associated with the doctrine.
§ 751 Waiver of Surviving Spouse's Right to Election : How and when a spouse may waive his/her right to the elective share.
Florida Will and Trust Forms Manual : Ave Maria School of Law
Model 200 Will : Single Person with Minor Children Simple Will.
Model 202 Will : Single Person Simple Will.
Model 300 Will : Married Couple without Minor or Incapacitated Children Simple Will.
Model 301 Will : Married Couple with Minor or Incapacitated Children Simple Will.
Florida Wills, Trusts, and Estates : ISBN: 978-1-61163-869-1
Ch. 3: Appointment of Personal Representative and Formalities of Execution : Provides information about who may be appointed a Personal Representative and what the formal requirements are for a Will to be valid.
Ch. 4: Testamentary Capacity and Undue Influence : Provides cases and discussion about what constitutes Testamentary Capacity and Undue Influence.
Inside Wills and Trusts: What Matters and Why : KF 730.L364 2012
This book is available through the Ave Maria School of Law Library.
Litigation Under Florida Probate Code : KFF 144.L573 2013
This book is available through the Ave Maria School of Law Library.
Wills & Trusts in a Nutshell : KF 755.Z9 M38 2017
This book is available through the Ave Maria School of Law Library.
Your Estate Matters : KF 750.Z9
This book is available through the Ave Maria School of Law Library.
LAW REVIEW / NEWS ARTICLES
Avoiding Statutory Restrictions on Appointment of Personal Representatives in Florida : 36 Nova L. Rev. 141 (2011)
This article discusses how Florida statutes preclude certain people from acting as Personal Representatives ("PR"), what the tests are for determining if a person may act as a PR, and what the exceptions to the rules are.
Law Firm Withers' Family Office Group Advises Ultra-Rich : Melissa Heelan Stanzione (June 25, 2019)
Article about new Estate planning services being offered around the world.
Note: Conflict of Law Regarding Revocation of Wills: Mutiny on the Situs Default : 39 Fla. St. U.L. Rev. 1105 (2012)
This is a Note that discusses the difficulties that arise when a person dies with a Will in one state, but owns property in another.
Slaying Contingent Beneficiaries : 24 U. Miami Bus. L. Rev. 31 (2015)
This article discusses in part Florida's "Slayer Statutes" and how it can alter a Testator's Will.
Statutory Fill-In-The-Blank Will Forms : 10 Probate & Property 26 (1996)
Discussion of the benefits and problems of "fill-in-the-blank" wills.
Twelve Ways of Proving the Negative and Overcoming the Carpenter Presumption of Undue Influence : 93-FEB Fla. B.J. 64
This article discusses the ways that the rebuttable presumption of undue influence, as layed out in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), may be successfully rebutted.
Wills--Probate--Accidentally Destroyed Will is Admissible to Probate as Fraudulently Destroyed : 75 Harv. L. Rev. 432 (1961)
Discussion about how a Will that was accidently destroyed was still able to be probated.
FLORIDA CONSTITUTION
Article 1 § 2: Basic Rights : Online Sunshine ; LexisNexis ; Westlaw
In Florida, both men and women have a constitutionally protected right to possess and protect property. This limited right cannot be taken away because of a person's race, religion, national origin, or physical disability.
GENERAL STATUTES
Fla. Stat. § 731.201–General Definitions : Online Sunshine ; LexisNexis ; Westlaw
General definitions for the Estates and Trusts chapter of the Florida Statutes.
Fla. Stat. § 732.4015–Devise of Homestead : Online Sunshine ; LexisNexis ; Westlaw
When a Homestead property may be given to someone in a Will.
Article XLII Estates and Trusts : Part V–Wills : Online Sunshine ; LexisNexis ; Westlaw
General Florida Statutes pertaining to Wills.
Fla. Stat. § 732.501–Who May Make a Will : Online Sunshine ; LexisNexis ; Westlaw
Defines who is allowed by law to make a Will.
Fla. Stat. § 732.502–Execution of Wills : Online Sunshine ; LexisNexis ; Westlaw
States the formal signing requirements for a Will to be valid.
Fla. Stat. § 732.503–Self-Proof of Will : Online Sunshine ; LexisNexis ; Westlaw
Provides proper format for a "Self-Proving Affidavit."
Fla. Stat. § 732.504–Who May Witness [a Will] : Online Sunshine ; LexisNexis ; Westlaw
States requirements for a witness to a Will.
Fla. Stat. § 732.505–Revocation by Writing : Online Sunshine ; LexisNexis ; Westlaw
Ways a Will may be revoked by a writing.
Fla. Stat. § 732.506–Revocation by Act : Online Sunshine ; LexisNexis 2019 ; LexisNexis 2020 ; Westlaw ; Bill Preempting
How a Will may be revoked by an act [Law changes on January 1st 2020].
Bill Preempting § 732.506 is 2019 Fla. Sess. Law Serv. Ch. 2019-71 (C.S.H.B. 409) (WEST).
Fla. Stat. § 732.507–Effect of Subsequent Marriage, Birth, Adoption, or Dissolution of Marriage : Online Sunshine ; LexisNexis ; Westlaw
How these changes in circumstances can effect a Will.
Fla. Stat. § 732.508–Revival by Revocation : Online Sunshine ; LexisNexis ; Westlaw
When revocation of a new Will reinstates (revives) an old Will.
Fla. Stat. § 732.509–Revocation of Codicil : Online Sunshine ; LexisNexis ; Westlaw
Effect of revoking Will on associated codicils.
Fla. Stat. § 732.5105–Republication of Wills by Codicil : Online Sunshine ; LexisNexis ; Westlaw
Explains how a codicil can make an old Will valid again.
Fla. Stat. § 732.511–Republication of Wills by Reexecution : Online Sunshine ; LexisNexis ; Westlaw
How properly re-signing an old Will can make it valid again.
Fla. Stat. § 732.512–Incorporation by Reference : Online Sunshine ; LexisNexis ; Westlaw
Describes steps necessary to make a separate document valid under a Will.
Fla. Stat. § 732.513–Devises to Trustee : Online Sunshine ; LexisNexis ; Westlaw
What gifts may be given by Will to a trustee.
Fla. Stat. § 732.514–Vesting of Devises : Online Sunshine ; LexisNexis ; Westlaw
When a gift in a Will may be enforced or questioned by a beneficiary or concerned party.
Fla. Stat. § 732.515–Separate Writing Identifying Devises of Tangible Property : Online Sunshine ; LexisNexis ; Westlaw
Requirements for a writing, that is not an actual part of a Will, to be valid under that Will.
Fla. Stat. § 732.5165–Effect of Fraud, Duress, Mistake and Undue Influence : Online Sunshine ; LexisNexis ; Westlaw
When a Will is voided by Fraud, Duress, Mistake, and Undue Influence.
Fla. Stat. § 732.517–Penalty Clause for Contest : Online Sunshine ; LexisNexis ; Westlaw
Enforceability of a clause stating that a penalty will be levied against a person challenging a Will.
Fla. Stat. § 732.518–Will Contests : Online Sunshine ; LexisNexis ; Westlaw
When a Will Contest may begin.
Fla. Stat. § 732.611–Devises to Multigeneration Classes to be Per Stirpes : Online Sunshine ; LexisNexis ; Westlaw
How a devise to a specific class is distributed.
Fla. Stat. § 732.703–Effect of Divorce, Dissolution, or Invalidity of Marriage on Disposition of Certain Assets at Death : Online Sunshine ; LexisNexis ; Westlaw
Defines key terms related to this section and what effect changes in marital status has on a valid Will.
Fla. Stat. § 732.901–Production of Wills : Online Sunshine ; LexisNexis ; Westlaw
When a Will MUST be presented to the probate court to be considered.
Fla. Stat. § 733.201–Proof of Wills : Online Sunshine ; LexisNexis 2019 ; LexisNexis 2020 ; Westlaw ; Bill Preempting
What evidence may be used to show that a Will presented to the court is a real Will [Law changes on January 1, 2020].
Bill Preempting § 733.201 is 2019 Fla. Sess. Law Serv. Ch. 2019-71 (C.S.H.B. 409) (WEST).
Fla. Stat. § 733.302–Who May Be Appointed Personal Representative : Online Sunshine ; LexisNexis ; Westlaw
Some of the legal requirements to be a Personal Representative.
Fla. Stat. § 733.303–Persons Not Qualified [to be Appointed Personal Representative] : Online Sunshine ; LexisNexis ; Westlaw
People who may NOT be Personal Representatives.
Fla. Stat. § 733.304–Nonresidents [Personal Representative] : Online Sunshine ; LexisNexis ; Westlaw
When a nonresident of the State of Florida may be a Personal Representative.
Fla. Stat. § 733.305–Trust Companies and Other Corporations and Associations [Personal Representative] : Online Sunshine ; LexisNexis ; Westlaw
When a non-human (i.e., an incorporation) may be a Personal Representative.
Fla. Stat. § 733.504–Removal of Personal Representative; Causes for Removal : Online Sunshine ; LexisNexis ; Westlaw
When a Personal Representative's power over an estate can be taken away.
Fla. Stat. § 733.602–General Duties [Personal Representative] : Online Sunshine ; LexisNexis ; Westlaw
What a Personal Representative is required to do, generally.
Fla. Stat. § 733.608–General Power of Personal Representative : Online Sunshine ; LexisNexis ; Westlaw
Defines what a Personal Representative can generally do.
Fla. Stat. § 733.617–Compensation for Personal Representative : Online Sunshine ; LexisNexis ; Westlaw
Defines the extent of a Personal Representatives right to pay for services.
SPOUSAL PROTECTION STATUTES
Fla. Stat. § 732.201–Right to Elective Share : Online Sunshine ; LexisNexis ; Westlaw
Defines Spouse's right to a specific portion of the estate.
Fla. Stat. § 732.102–Spouse's Share of Intestate Estate : Online Sunshine ; LexisNexis ; Westlaw
Share of estate that surviving spouse receives.
Fla. Stat. § 732.301–Pretermitted Spouse : Online Sunshine ; LexisNexis ; Westlaw
Defines Spouse's right to a specific portion of the estate when the Spouse is unintentionally left out of or inadequately provided for in a Will.
Fla. Stat. § 732.401–Descent of Homestead : Online Sunshine ; LexisNexis ; Westlaw
How a Spouse's interest in a Homestead is protected.
Fla. Stat. § 732.402–Exempt Property : Online Sunshine ; LexisNexis ; Westlaw
Personal Property that is exempt from claims against an estate.
Fla. Stat. § 732.403–Family Allowance : Online Sunshine ; LexisNexis ; Westlaw
Defines conditions and amount of money Spouse or Decedent's Family is entitled to for bills while waiting for the estate to settle.
Fla. Stat. § 732.702–Waiver of Spousal Rights : Online Sunshine ; LexisNexis ; Westlaw
How a Spouse may waive his/her protections.
Fla. Stat. § 732.805–Spousal Rights Procured by Fraud, Duress, or Undue Influence : Online Sunshine ; LexisNexis ; Westlaw
What happens when a Spouse gains rights illegally.
Fla. Stat. § 733.301–Preference in Appointment of Personal Representative : Online Sunshine ; LexisNexis ; Westlaw
To whom the courts give preference when naming a Personal Representative for an estate.
ADDITIONAL PROTECTIONS STATUTES
Fla. Stat. § 732.302–Pretermitted Children : Online Sunshine ; LexisNexis ; Westlaw
Defines a child's share of the estate who is unintentionally omitted from a Will.
Fla. Stat. § 732.802–Killer not Entitled to Receive Property or Other Benefits by Reason of Victim's Death : Online Sunshine ; LexisNexis ; Westlaw
Slayer Statute ; States when a Killer may not inherit from his/her Victim.
Fla. Stat. § 732.806–Gifts to Lawyers and Other Disqualified Persons : Online Sunshine ; LexisNexis ; Westlaw
When gifts may and may not be left to attorney's and their families associated with a particular Will.
WILL ISSUES
Florida Constitution
Shriners Hosp. for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990). : Court Listener ; LexisNexis ; Westlaw
Holding : People have a qualified right to devise property as they choose; however, that right may be restricted when the restriction is reasonably related to a legitimate government interest.
Will Formalities
Bradley v. Bradley, 371 So. 2d 168, 171 (Fla. 3d DCA 1979). : Google Scholar ; LexisNexis ; Westlaw
Holding : When a Testator has a two-page Will and signs on the front page after the words "Will of" the court needs to conduct a further hearing to determine if the Testator intended to sign at the end and if the signature was indeed close enough to be "at the end."
Dalk v. Allen, 774 So. 2d 787 (Fla. 5th DCA 2000). : Court Listener ; LexisNexis ; Westlaw
Holding : When a Will is not signed by the Decedent, it is NOT valid; a valid Will fully complies with the execution requirements found in Fla. Stat. § 732.502.
In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978). : Google Scholar ; LexisNexis ; Westlaw
Holding : When a Testator signs at the end of a Codicil and a Self-Proving Affidavit, and the Witnesses only sign the Affidavit, it is sufficient to satisfy Florida's statutes; witnesses need not have any specific mental intent when they subscribe to a Will.
In re Estate of Williams, 182 So. 2d 10, 13 (Fla. 1965). : Court Listener ; LexisNexis ; Westlaw
Holding : A Will is validly executed if the Testator signs at the end of the Will; the signature may be the person's "mark."
In re Schiele's Estate, 51 So. 2d 287 (Fla. 1951). : Google Scholar ; LexisNexis ; Westlaw
Holding : The Testator's signature in the Attestation Clause may be considered "at the end" of the Will for the purposes of meeting the statutory requirement; this is determined on a case by case basis.
Price v. Abate, 9 So. 3d 37 (Fla. 3d DCA 2009). : Court Listener ; LexisNexis ; Westlaw
Holding : Because Florida is a strict compliance state, in order to establish a lost will, the petitioner MUST show that the lost document was executed with all of Florida's required formalities; if the formalities cannot be proven in court, then the Will will not be considered.
Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992). : Court Listener ; LexisNexis ; Westlaw
Holding : When witnesses do not sign in the presence of the Testator AND each other, the Will is invalid.
Werner v. Estate of McCloskey, 943 So. 2d 1007, 1008 (Fla. 1st DCA 2006). : Court Listener ; LexisNexis ; Westlaw
Holding : Unless the person nominated is not statutorily qualified to serve, the court does not have discretion in appointing a Personal Representative when one is specified in the Will.
Testamentary Capacity
American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998). : Court Listener ; LexisNexis ; Westlaw
Holding : When a Will is made AFTER the Testator has been declared incompetent, the proponent must prove that at the time the Will was signed the Testator was having a "lucid" moment.
In re Estate of Edwards, 433 So. 2d 1349, 1349-52 (Fla. 5th DCA 1983). : Court Listener ; LexisNexis ; Westlaw
Holding : A will may not be revoked on the basis of no "Sound Mind" or "Insane Delusion" unless the proponents can show that the Testator did not have the ability to generally understand (1) the nature and extent of property to be given away, (2) Testator's relation to those who would "normally" inherit, and (3) the practical effect of the Will as executed (i.e., what the Will is going to do), or that the Testator held a belief when there was no evidence to establish any basis for that belief and it was therefore an "Insane Delusion."
Levin v. Levin, 60 So. 3d 1116, 1119 (Fla. 4th DCA 2011). : Google Scholar ; LexisNexis ; Westlaw
Holding : The trial court did not err in finding that there was no presumption of Undue Influence; however, the trial court did not reach the issue of whether or not the mother suffered from an "Insane Delusion;" if the Testator does suffer from one, the test then becomes: did the person make a Will that he/she would not have made but for the Insane Delusion.
COURT RULES
Florida's Court Rules : Florida Bar Association ; LexisNexis ; Westlaw
These links go to listings of the different Court Rules in Florida; Rule Sets include: Florida Probate Rules, Florida Rules of Civil Procedure, and Florida Rules of Judicial Administration.
Florida Probate Rules : Florida Bar Association ; LexisNexis ; Westlaw
These are the official rules for Probate Court in Florida; the rules enumerated in this section can be found for free by clicking on the Florida Bar Link associated with this topic.
R. 5.010: Scope : LexisNexis ; Westlaw
How these rules govern and apply to a Florida probate court.
R. 5..025: Adversary Proceedings : LexisNexis ; Westlaw
Specifies what constitutes an Adversary Proceeding.
R. 5.042: Time : LexisNexis ; Westlaw
How time is computed for the time requirements with an estate.
R. 5.043: Deposit of Wills and Codicils : LexisNexis ; Westlaw
Unless the court orders otherwise, the clerk must maintain a copy of an original Will or Codicil for 20 years after it is submitted.
R. 5.122: Curators : LexisNexis ; Westlaw
Policies and procedures for appointing a curator of an estate.
R. 5.200: Petition for Administration : LexisNexis ; Westlaw
Requirements for a Petition for Administration; with a testate estate, there must be a statement listing all known Wills and Codicils, and a statement that the Decedent's last Will is in the possession of the court.
R. 5.205: Filing Evidence of Death : LexisNexis ; Westlaw
Evidence of Decedent's Death must be filed in a testate estate when there is probate of a Will without Administration.
R. 5.210: Probate of Wills Without Administration : LexisNexis ; Westlaw
Requirements for and Objections to a petition to probate a Will without Administration.
R. 5.215: Authenticated Copy of a Will : LexisNexis ; Westlaw
When a copy of a Will may be submitted to probate court.
R. 5.216: Will Written in Foreign Language : LexisNexis ; Westlaw
Requirements for a Will written in a language other than English, in addition to statutory requirements.
R. 5.230: Commission to Prove Will : LexisNexis ; Westlaw
Upon request, a court may appoint a commissioner to prove the validity of a Will.
R. 5.240: Notice of Administration : LexisNexis ; Westlaw
Upon written request, a Personal Representative must provide a copy of the Will with the Notice of Administration to any concerned party.
R. 5.260: Caveat, Proceedings : LexisNexis ; Westlaw
Requirements for filing a caveat and appointing a caveator.
R. 5.270: Revocation of Probate : LexisNexis ; Westlaw
Contents of a petition requesting revocation of probate.
R. 5.275: Burden of Proof in Will Contests : LexisNexis ; Westlaw
Burden to establish a Will rests upon the proponent of the Will; afterwards, the burden to prove invalidity rests on the contester.
R. 5.320: Oath of Personal Representative : LexisNexis ; Westlaw
Required oath for the Personal Representative.
R. 5.3425: Search of Safe Deposit Box : LexisNexis ; Westlaw
Content requirements for a petition requesting permission to search a safe deposit box; there must be a statement saying that the petitioner believes that the box contains at least one enumerated item (i.e., Will or Codicil).
R. 5.430: Resignation of Personal Representative : LexisNexis ; Westlaw
Policies and Procedures concerning the resignation of a Personal Representative.
R. 5.470: Ancillary Administration : LexisNexis ; Westlaw
Petition requirements for a testate estate requesting Ancillary Administration.
R. 5.510: Establishment of a Lost or Destroyed Will : LexisNexis ; Westlaw
Basic policies and procedures to establish a lost or destroyed Will.
R. 5.530: Summary Administration : LexisNexis ; Westlaw
Requirements for a petition for Summary Administration.
Florida Rules of Judicial Administration : Florida Bar Association ; LexisNexis ; Westlaw
These are the official rules of Judicial Administration for Florida.
R. 2.520: Documents : LexisNexis ; Westlaw
Documents such as Wills and Codicils may be filed with the court without complying with the space requirement of this rule.
Florida Rules of Civil Procedure : Florida Bar Association ; LexisNexis ; Westlaw
These are the official rules of Civil Procedure for Florida.
FORMS
Florida Estates Practice Guide : Ave Maria School of Law
2.210: Will of Unmarried Client with No Children; Small Estate; Residue in Fractional Shares Outright : Basic will that includes real property; Homestead affects how the property may be devised.
11.200: Petition for Family Administration--Testate : Petition for Family Administration of an testate estate; allows for Homestead property.
11.204: Petition for Summary Administration--Testate : Petition for Summary administration of a testate estate; allows for Homestead property.
11.209: Disposition of Personal Property Without Administration : Method of disposing of the property of a testate Estate.
17.202: Petition for Determination of Devisees and Their Shares : Petition requesting that the court determine who takes under a Will and what their respective shares are.
17.203: Order Determining Devisees and Their Shares : Order stating who the Devisees of an estate are what their respective shares are.
Florida Estate & Probate Practice : Ave Maria School of Law
6.85: Will Clause: Alternative Disposition : Model clause in a Will allowing for disposition of property by residuary.
8.11: Title and Introduction : Title of a Will.
8.12: Revocation Clause : Clause that revokes all prior Wills and Codicils.
8.13: Identification of Family : Defines the Testator's family and includes provisions for afterborn children.
8.14: Disposition of Body : Directs what is to happen to the Testator's body upon death.
8.15: Non-Exoneration Provision : Direction that specific devises are to pass to the beneficiary with all encumbrances.
8.16: Payment of Taxes : States who is and is not to pay the taxes on the estate.
8.17: Joint Accounts : Statement of Ownership of a Joint Account.
8.18: Survivorship Clause : States what should happen if the Testator is not survived by a beneficiary.
8.19: General Rules of Construction and Definitions : Explains how the Will is to be read and understood.
8.20: Signature (Testimonium) Clause : Sample Signature Testator.
8.21: Attestation Clause : Sample Signature page for witnesses.
8.22: Self-Proving Affidavit : Sample Affidavit for proving the document in court; must be properly signed by Testator, witnesses, and a Notary Public.
8.23 Separate Clause Directing Cremation : Statement requesting cremation of Testator's Body.
Estate Planning: West's Florida Practice Series : Ave Maria School of Law
§ 8.13 Form: Self-Proof of Will : The Self-Proving Affidavit.
This is the Westlaw Form Search Engine; it searches across all of their form books.
Florida Jurisprudence 2d.: Forms : KFF 80.F56 1977
This resource is available at the Ave Maria School of Law Library; forms are located in their own volumes at the end of the main title volumes.
Florida Probate Code Manual : Ave Maria School of Law
§ 2.07 Self-Proved Wills : Provides a definition of "Self-Proved Wills," discusses their benefits, and provides a form for the required affidavit.
Chapter 18 - Probate Forms : List of forms for both single and multiple petitioners for intestate Summary Administration.
Florida Will and Trust Forms Manual : Ave Maria School of Law
Model 200 Will : Single Person with Minor Children Simple Will.
Model 202 Will : Single Person Simple Will.
Model 300 Will : Married Couple without Minor or Incapacitated Children Simple Will.
Model 301 Will : Married Couple with Minor or Incapacitated Children Simple Will.
Nichols Cyclopedia of Legal Forms : KF 170.N53
This resource is available at the Ave Maria School of Law Library
I used to work for a company that handled retirement portfolios, and I remember the first time I saw a $30,000 check go by my desk. I thought: "Wow! That is a lot of money." A few months later, my position had changed to "Oh! That is never going to be enough!" It was a strange feeling watching as thousands of dollars went by and coming to the odd realization that money doesn't actually exist.
Money is a construct that so hugely affects our everyday lives and yet, in God's realm, it doesn't have any "monetary" value. As a result, the law is always changing, and people can't decide what is going on, how to respond, and what is required of them.
The question then becomes: How do we function in a society that depends on ephemeral criteria and balance that against the truth that Jesus takes care of His people? The secular world says "work yourself to the bone and get a lot of money so we don't have to take care of your family." Jesus says "Consider the lilies how they grow: they toil not, they spin not; and yet I say unto you, that Solomon in all his glory was not arrayed like one of these. If then God so clothe the grass, which is to day in the field, and to morrow is cast into the oven; how much more will He clothe you...?" Luke 12:13-34.
As Christians, I think that the best we can do is to try and use the rules we have now and trust that Jesus will take care of the rest. Fear not! He is our true inheritance.
This site was written by a law student who has not yet been admitted to a bar and is not licensed to give a legal opinion. This site is intended for informational and research purposes only; it does NOT constitute legal advice and nothing herein should be construed as such. This is an educational site that contains resource samplings, but is not an exhaustive collection. While every effort has been made to ensure that the included hyperlinks connect to the correct website, results are not guaranteed. This site is not updated, nor does it necessarily reflect the current status of the law. Prior to making any legal decisions, you should consult with a licensed attorney in your state. Use of this website, including contact with anyone associated with this site, does not create an attorney-client relationship, nor attorney-client privilege. All liability relating to the use of the information on this site is disclaimed.
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