What You Need to Know About Your Last Will and Testament

This blog applies only to Florida residents and Florida assets.

Hopefully, you have had your Last Will and Testament prepared by a Florida attorney. It should be kept in a safe place such as a bank safe deposit box or a fire-proof safe at home. You should tell the beneficiaries of your will where the will is kept. If the original will cannot be found, there is a rebuttable presumption that the will was destroyed by the maker with the intent to revoke it. If your house burned down with your will in it, the presumption of revocation would be canceled, and a copy of the will could be probated.

If you wish to make a change to your will, you should have your attorney prepare either a new will or a codicil to your will with the change. Lining through part of your will or inserting new items in your will is not effective even if you initial or sign next to the change.

A will can be revoked by the maker, or some other person in the testator’s presence at the testator’s direction by burning, tearing, cancelling, defacing, obliterating, or destroying it with the intent and purpose of revocation (Fla. Stat. 732.506).

What happens if, after you sign your will, you marry, have a child by birth or adoption, or divorce the spouse you had when the will was made? Fla. Stat. 732.507 provides that marriage, birth, or adoption does not revoke your prior will, but the new spouse would inherit as if you died without a will unless:

  • Provision has been made for or waived by the spouse by pre-nuptial or post-nuptial
    agreement; or
  • The spouse is provided for in the will; or
  • The will discloses an intention not to make provision for the spouse.

A provision in a married person’s will for his/her spouse becomes void upon the dissolution or annulment of the marriage and the will shall be administered as if the former spouse died at the time of the dissolution or annulment unless the will or the dissolution or divorce judgment expressly provides otherwise.

Fla. Stat. 732.508 provides that revocation by the testator of a will that revokes a former will shall not revive the former will. The revocation of a codicil to a will does not revoke the will and in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provisions of a will or codicil that were changed or revoked by the codicil as if the revoked codicil had never been executed.

Fla. Stat. 732.509 provides that revocation of a will revokes all codicils to the will.