Understanding the Difference Between Living Wills and Wills in Florida

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Gary M. Landau, Esq.
Last Updated: September 1, 2023

Understanding various terms used when planning for end-of-life documents can be confusing. This is especially the case because the names for several estate planning documents sound similar. Nowhere is this confusion more rife than in understanding the difference between living wills and wills in Florida.

This blog describes the basics of both these documents. We discuss making wills and living wills so they comply with specific laws in the state, especially so the former can be properly recognised by Florida probate courts. We also emphasise the importance of making informed decisions about your own end-of-life plans, free from undue influence from relatives or friends.

Both wills and living wills are documents specific to Florida law, so the information here only pertains to residents of Florida.

Read on for valuable insights from an experienced Florida attorney about how properly drafting Florida wills and living wills will give you peace of mind now—and help your loved ones deal with your estate years down the road. To schedule a free consultation, call us at (954) 979-6566.

Estate Planning: The Basics of Protecting Your Estate’s Assets

When you begin your estate planning–which nearly everyone should do, regardless of the value of your assets or your family situation–most people start with a written will. This document, more formally known as a Last Will and Testament, comprehensively states your wishes for asset distribution after death.

Another document that must be created according to Florida law is the living will, also known as an advanced healthcare directive.

A living will is used by your relatives and medical personnel while you are still alive but are unable to convey your own wishes. By contrast, a will goes into effect after your death and is used by the Florida probate court to determine how to distribute your assets..

A Florida estate planning lawyer can help you with drafting wills, a process that includes appointing a personal representative, as well as living wills and other important documents, ensuring that all comply with state laws.

Wills vs. Living Wills: What’s the Difference?

Wills

The will is the written document explaining how you want your assets distributed after your death. When properly executed, wills help your family understand your wishes and prevent the courts from distributing your money and real estate according to state formulas rather than what you would want.

A Florida will designates a personal representative, which is the individual tasked with managing the estate of the deceased person, known in probate lingo as the decedent.

Florida wills can also include provisions for the guardianship of minor children–in other words, who will raise your underage children if something happens to both their parents. Each spouse in a married couple must have their own will.

What Florida Law Requires for a Valid Will

Florida has several requirements to establish a legally valid will that ensures the decedent’s property and assets can be distributed according to the person’s wishes.

This includes:

Age: The person writing the will, known as a testator, must be at least 18 years old or be a court-recognized emancipated minor.
Sound Mind: The testator must be a competent person of sound mind, meaning they understand the nature of their assets and the implications of their decisions. Someone with severe dementia, for example, is not capable of drafting a will.
In Writing: For a will to be valid in Florida, it must be written. Florida does not recognize oral wills.
Personal Representative: The testator must name a personal representative who will deal with the probate process after the testator’s death. This person needs to be a mentally and physically capable adult. If the person lives in another state, they must be a blood relative. It is a good idea to ask someone if they want to be your PR before you name them in a will.
Witnesses: A will must be signed by the testator in the presence of two competent witnesses, who also sign the will. Wills don’t need to be notarized to be legally valid, but if they are notarized the probate process will be quicker and easier.

The Importance of a Last Will and Testament

Wills play an important part in an estate plan:

Asset Distribution: A Florida will lets you designate who you want your money and property to go to. (Most wills don’t list specific amounts, but rather the percentage of the assets each beneficiary will get.)
Naming a Guardian: If you have minor children or someone with a severe disability, the will enables you to designate a guardian who will care for them after your death, such as a close relative, other living relatives, or someone else whom you trust.
Avoiding Distribution Per State Law: According to state law, the distribution of assets of someone who dies without a valid will (in legal jargon, they died intestate) is determined by a formula known as intestate succession (e.g., assets go to a spouse first, then living children if there is no spouse, parents if there are no children…) This distribution may not reflect your desires.

Regular Review and Updates

Change is an inevitable part of life, and some of these changes necessitate updates to your existing will, or even the creation of a new will. These circumstances, including marriage, divorce, the birth of children or grandchildren, changed state of residence, significant changes in your financial situation, the death of your planned PR or a beneficiary, or other factors, can necessitate updates to your original will.

This is why it’s important to dust off your will every five to ten years–or after one of these major events–to make sure it remains current.

Potential Legal Hurdles

It is important that your will be properly drafted in compliance with Florida laws, so your designated heirs don’t run into legal hurdles upon your death. Problems may include having the court toss a will as invalid or subjecting the surviving spouse or other loved ones to acrimonious lawsuits between them.

A legally binding will may also save time and money during the probate proceedings, ensuring a smoother transmission of your assets.

By seeking the assistance of an experienced wills and trusts attorney when you create or update your will, you can feel confident that your will meets all Florida legal requirements.

Living Wills

The document known as a living will is one that codifies your desire for or against heroic medical interventions if you are unable to make decisions because you are incapacitated. Signing a living will that indicates you do not want these interventions if there is no hope for recovery may keep you from being put on months or years of life support when you are not really alive.

This document is brought by relatives to your physician, who will note it in your chart.

A living will is typically drafted by an attorney at the same time as a will and other end-of-life documents, also including a healthcare power of attorney that designates someone to make basic healthcare decisions on your behalf.

Under Florida law, a living will must be signed by two witnesses (one of whom is not a spouse or blood relative) but it does not need to be notarized.

The Difference Between a Will and a Living Will in a Nutshell

A will designates asset distribution according to your wishes, ensuring that you, rather than the probate court, will determine who gets what. A will takes effect only after your death and has no bearing on healthcare decisions made during your lifetime.

A living will allows you to maintain control over your healthcare wishes at the end of your life when you are totally incapacitated. It instructs medical professionals whether you want to be put on life support or have other heroic measures taken to sustain your life when there is no chance of recovery. Signing a living will alleviates the burden on your loved ones who might otherwise have to make this difficult decision on your behalf.

Choosing the Right Document

If you have substantial assets, property, and/or minor children, a will is crucial. If you have strong feelings about your end-of-life care, you also need a living will.

Most people require both a will and a living will. An experienced estate attorney will draft both documents as part of your estate plans.

Of course, experienced attorneys know that everyone’s situation is unique. That’s why it’s important to consult an estate lawyer to discuss your specific needs under Florida law.

One More Document to Consider

The Law Office of Gary M. Landau has created a free, unique end-of-life document for everyone to express their desires for the psychological and emotional aspects of their life near the end.

Called “My Last Emotional Wishes,” the free four-page form is available to download from the attorney’s home page (scroll to the bottom) This form takes the guesswork from struggling family and friends about what you might want during your last months, days, and hours.

Please note that this is not a legally binding document and does not replace your will, living will, or healthcare power of attorney. But, along with all those documents, it provides for a more comprehensive end-of-life plan.

Frequently Asked Questions About Wills and Living Wills in Florida

What is the difference between a will and a living will in Florida?

A will explains how your assets will be distributed after your death and only takes effect upon your passing. A living will applies while you are still alive and unable to communicate, and it outlines your wishes regarding life-prolonging medical treatment when there is no reasonable chance of recovery.

Do I need both a will and a living will in the state of Florida?

Most people need both documents. A will handles asset distribution and guardianship matters after death, while a living will protects your healthcare wishes in the event of incapacity.

Is a living will the same as a healthcare power of attorney?

No. A living will states your end-of-life medical preferences. At the same time, a healthcare power of attorney designates someone to make medical decisions on your behalf if you are unable to do so. Both documents serve different purposes and are often created together.

What makes a will legally valid in the state of Florida?

A valid Florida will must be written, signed by the testator, and witnessed by two competent witnesses. The person creating the will must be at least 18 years old and of sound mind. Notarization is not required, but it can make probate easier.

What happens if I die without a will in Florida?

If you die without a valid will, Florida’s intestate succession laws determine how your assets are distributed. This distribution may not reflect your wishes and can create delays and disputes for your loved ones.

Can I write my own will in Florida?

Florida law allows individuals to write their own wills; however, mistakes in wording, execution, or witnessing can render a will invalid. Working with an experienced Florida estate planning attorney helps ensure your will complies with state law.

Do living wills need to be notarised in Florida?

No, a living will does not need to be notarised in Florida. However, it must be signed in the presence of two witnesses, one of whom cannot be a spouse or blood relative.

When should I update my will or living will?

You should review and update your estate planning documents after major life events such as marriage, divorce, the birth of a child, significant financial changes, or a move to or from Florida. Even without major changes, reviewing your documents every five to ten years is recommended.

Can a will control medical decisions in Florida?

No. A will has no authority over medical decisions because it only becomes effective after death. Medical decisions must be addressed through a living will and healthcare power of attorney.

Why should I hire a Florida estate planning attorney?

Florida has strict laws governing wills, living wills, and probate. An experienced estate planning attorney helps ensure your documents are legally valid, reduces the risk of disputes, and provides peace of mind that your wishes will be honored.

LAW OFFICE OF GARY M. LANDAU, P.A.

Attorney for Wills, Trusts, and Other Documents in Coral Springs, FL

Have you been searching online for a “lawyer who does wills” or a “wills and estate planning attorney near me?”

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Wills & Trust

Frequently Asked Questions

What Is a Will and Why Do I Need One?

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

If I Have an Out-of-State Will, Is That Sufficient?

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

How Do I Know When It Is Time to Update My Will?

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

You have gotten married since it was last drafted;
You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Where Should I Store My Will?

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

As an alternative, you could store the will in a fireproof box or vault in your own home.

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

What Is Probate?

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

What Is a Personal Representative and Why Do I Need One?

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Do I Need to Probate My Newly Deceased Spouse’s Will If Our Assets Are Held Jointly?

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.