Last Will and Testament FAQ

A testator or testatrix is the person whose will it is. A testator is male and a testatrix is female.

A will takes effect after the testator/trix dies and the will is admitted to probate.

Your personal representative is the person who will administer your estate—settling your debts and distributing your assets to loved ones—after you pass. While you can nominate a personal representative in your will, they must be appointed by the court before they can act. Learn more about who can serve as a personal representative.

Yes, there is no legal requirement in Florida that an attorney drafts your will. However, Florida has strict rules that need to be followed when drafting and executing a will and if these are not followed, Florida law says the will is invalid. With very limited exceptions, Florida does not acknowledge holographic wills (wills without witnesses, usually handwritten by the testator) and nuncupative wills (oral wills), even if validly created in a different state.

In order to create a Florida will, you must be at least 18 years old, have the capacity to understand what you are doing, and be aware of who your closest relations are.

Florida has very strict formalities that must be followed when executing a will:

1. The will must be in writing.

2. The will must be signed at the end by the testator/testatrix.

3. The testator must either sign the will in front of two witnesses or acknowledge before two witnesses that he/she previously signed it.

4. The witnesses must sign the will in the presence of both the testator/testatrix and the other witness.

If the formalities are not strictly followed, the entire will is invalid.

Unfortunately, you cannot just pencil in changes you would like to make to your will. Instead, you will need to execute a codicil, which is an amendment to a will and used for more minor changes. If you want to make significant changes to your will, or if you have already executed multiple codicils, it may be a better idea to execute an entirely new will that revokes the previous will and codicils. This will help consolidate any previous changes and simplify probate since the court will only have to look at one document.

There are two ways to revoke a will or codicil:

1. Execute a new will that states any previous wills and codicils are revoked and only the terms of the new will should be followed; or

2. Either the testator himself burns, tears, cancels, defaces, obliterates, or destroys the will with the intent to revoke it, or another person does it at the testator’s direction and in the testator’s presence.

Learn more about how to properly revoke a will or codicil and the implications.

A pour-over will is executed in conjunction with a trust and “pours over” all of the decedent’s assets into the trust. The purpose of this type of will is to make sure that if the decedent forgot to put an asset into their trust during their lifetime—or if an asset was acquired after the decedent died, like the proceeds from a lawsuit—the asset will then be accounted for and put into the trust to be administered per the terms of the trust.

No, a testamentary trust is one created in a will. So, in order to take effect, the will needs to be probated.

Yes, since a testamentary trust only takes effect after you die, it is irrevocable.