Last Will & Testament Drafting

Last Will & Testament Drafting in Florida

A well-drafted last will and testament is the cornerstone of any estate plan. It ensures that your assets pass to the people you choose, names the individuals who will manage your estate and care for your minor children, and articulates your final wishes in a legally binding document. Without a valid will, Florida’s intestacy statutes decide who inherits your property — often with results that surprise and frustrate surviving family members.

John Montague, Esq. drafts precise, customized wills for individuals, families, business owners, and high-net-worth clients throughout Florida. With a legal background spanning corporate transactions, tax, and estate planning, John ensures that each will integrates seamlessly with trusts, beneficiary designations, business succession plans, and retirement accounts so that no asset falls through the cracks.

Why a Valid Will Matters

A properly executed Florida will does far more than distribute property. It selects a personal representative (Florida’s term for executor), names guardians for minor children, creates testamentary trusts for young or vulnerable beneficiaries, directs specific gifts of sentimental or valuable property, and can incorporate tax-sensitive language that minimizes estate and income tax exposure at death.

If you die without a will in Florida (known as dying intestate), Florida Statutes Chapter 732 dictates who inherits. The surviving spouse does not automatically receive everything. Children from prior relationships, estranged relatives, and the state itself can end up with portions of your estate you never intended them to have. A carefully drafted will avoids these pitfalls and keeps control in your hands.

Key Legal Requirements for a Florida Will

Statutory Execution Formalities

Florida Statute § 732.502 imposes strict execution requirements. The testator must be at least 18 years old and of sound mind. The will must be in writing, signed at the end by the testator (or at the testator’s direction) in the presence of two witnesses, and both witnesses must sign in the presence of the testator and each other. Electronic wills executed under the Florida Electronic Wills Act (Fla. Stat. § 732.521 et seq.) are permitted but must follow specific remote notarization protocols.

A self-proving affidavit executed before a notary public is not required but is strongly recommended. It streamlines probate by eliminating the need to locate witnesses after death and is a simple step that saves families time and expense during an already difficult period.

Testamentary Capacity and Undue Influence

For a will to be valid, the testator must have testamentary capacity — an understanding of the nature of their property, the natural objects of their bounty (close family members), and the disposition being made. Wills executed by individuals with diminished capacity, or under the influence of a person in a confidential relationship, are routinely challenged in probate court. Thoughtful drafting with documentation of mental state, independent counsel, and, when appropriate, contemporaneous medical confirmation, reduces the risk of a successful will contest.

Specific Bequests, Residuary Clauses & Guardianship

A well-constructed will distinguishes between specific bequests (a particular heirloom or sum of money to a named person), general bequests, and the residuary clause that catches everything else. Ambiguity in these provisions is one of the leading causes of probate litigation. For parents of minor children, naming a primary and successor guardian — and addressing how funds should be managed for those children — is often the most important decision in the entire document.

Coordination with Non-Probate Assets

Many assets pass outside the will entirely: retirement accounts, life insurance, pay-on-death accounts, joint tenancy property, and assets already titled in a revocable living trust. A will that ignores these designations creates conflict and can disinherit loved ones unintentionally. Comprehensive drafting reviews beneficiary designations alongside the will to ensure a coherent plan.

Tax & Asset Protection Considerations

While Florida has no state estate or inheritance tax, the federal estate tax still applies to estates exceeding the federal exemption (indexed annually). Business owners, real estate investors, and families with significant retirement accounts benefit from wills that incorporate testamentary credit shelter trusts, marital deduction planning, and disclaimer provisions. John’s accounting degree from Stetson University and tax-focused legal training inform every draft.

Practical Guidance: What to Expect

Drafting a will begins with a conversation about family dynamics, asset composition, and long-term goals. John walks clients through a structured intake covering marital status, children from current and prior relationships, business interests, real estate, digital assets, charitable intentions, and preferences regarding guardianship and fiduciaries. From there, a tailored draft is prepared — not a fill-in-the-blank form.

Review sessions focus on plain-English explanations of each clause. Execution is handled in-office or via compliant remote signing with proper witnesses and a notary. After execution, clients receive the original and guidance on safe storage; many elect to have the firm retain the original to avoid loss. Reviews are recommended every three to five years or upon major life events such as marriage, divorce, birth, death, or relocation.

Frequently Asked Questions

Do I need both a will and a revocable living trust?

Many Florida estate plans use both. A pour-over will backs up a revocable living trust by directing any assets that weren’t transferred into the trust during life to be poured into the trust at death. This combination offers the privacy and probate-avoidance benefits of a trust with the safety net of a will.

Can I disinherit my spouse or a child in Florida?

Florida gives a surviving spouse an elective share equal to 30% of the elective estate regardless of what the will says, subject to valid waivers in a prenuptial or postnuptial agreement. Adult children generally can be disinherited, but the homestead protections under Article X, § 4 of the Florida Constitution limit how a homestead can pass when minor children or a spouse survive. These issues are highly fact-specific and demand careful drafting.

What happens to my will if I move to or from Florida?

A will valid where executed is generally honored in Florida, but nuances in homestead rules, elective share calculations, and personal representative qualifications make it prudent to refresh your will after relocation. If you move out of Florida, the same is true in reverse — every state has its own formalities and tax rules.

How often should I update my will?

Review it every three to five years, and always after marriage, divorce, the birth or adoption of a child, death of a named beneficiary or fiduciary, substantial changes in net worth, or a move to another state. Codicils can amend small provisions, but complete restatements are often cleaner and reduce litigation risk.