Promises in Limbo: A Will Without a Way

Jesus La Rosa

Disclaimer: This article is for informational purposes only and is not legal advice nor intended to advertise or solicit legal services. Reading it does not create an attorney–client relationship with La Rosa Law. Every situation is unique. You should consult a licensed attorney about your specific circumstances.

When someone passes away, ideally, they should have a will distributing their assets that’s relatively easy to find. Right? Wrong. Wills have a way of somehow growing two feet and walking off anywhere except where they should be. If by some miracle, the will is actually where it’s supposed to be, it has a way of splitting up families and basically causing “beef” over who gets what or whether peepaw was in the proper state of mind to convey this family heirloom. Wills are messy but learning how to deal with them does not have to be complicated. In this article, we’ll break down Florida wills law so no one in the family has to crash out over a piece of paper.

Creating a Will in Florida

A will is a document that can dispose of a testator’s property, revoke a prior will, and appoint a personal representative.¹ To execute a will in Florida, you must strictly comply with the execution requirements for wills found in Fla. Stat. § 732.502.

First, every will must be in writing. While the term in writing seems vague, “in writing” can be handwritten or typed. Second, the testator (person who creates and executes his or her own will) must sign the will. If the testator cannot sign for disability reasons (we’re ADA compliant over here) or is just too bougie to sign their own will, the testator can direct a proxy to sign the testator’s name at the end of the will in the testator’s presence. Third, the testator (or proxy) must sign in the presence of at least two witnesses. Fourth, the two witnesses must sign in the presence of the testator and in the presence of each other.²

Testator’s State of Mind

The testator must be two things to create a valid will: of age and of sound mind (so be 18+ and be mentally all there basically). Under Florida Statute § 732.501, a person must be at least 18 years old or an emancipated minor to make a valid will. You must be 18 or an emancipated minor at the time you sign the will, otherwise it will not be valid even if you signed one day before your 18th birthday or one day before you got married or 3 hours before the court granted your emancipation.

Additionally, a testator must be of sound mind at the time the will is executed. While the Probate Code doesn’t define “sound mind,” Florida case law has held that being of «sound mind» refers to the testator’s ability to mentally understand, in a general way, three key aspects: (1) the nature and extent of the property to be disposed of, (2) the testator’s relationship to those who would naturally claim a substantial benefit from the will, and (3) a general understanding of the practical effect of the will as executed.³ Florida law also presumes that testators executed their wills with a sound mind unless evidence to the contrary is presented (competent unless proven otherwise).⁴

Who Can Be a Witness?

Under Fla. Stat. § 732.504, anyone competent may serve as a witness (even interested witnesses A.K.A. beneficiaries of the will, but their credibility as witnesses will always be suspicious). A person’s competency is judged at the time the will is signed. To be competent, the witness just needs to be able to see the person sign (or acknowledge their signature or have someone else sign for them at their direction) and understand what’s happening. There’s no minimum age for witnesses, and they don’t have to read the will, evaluate whether the person making it is mentally capable, or check whether the decision was voluntary.⁵

What Happens When a Will Goes Missing or Is Hidden?

When a will that was in the possession of the testator cannot be located after their death, Florida law presumes that the testator destroyed the will with the intent to revoke it. This presumption can be rebutted by the proponent of the will through competent and substantial evidence. In In re Estate of Parker, 382 So. 2d 652 (Fla. 1980), the Florida Supreme Court clarified what qualifies as a “correct copy” of a will when trying to establish a lost or destroyed document. Florida law (§ 733.207(3)) allows a lost will to be admitted to probate if its contents are proven by either (1) two disinterested witnesses or (2) one disinterested witness plus a “correct copy” of the will. The estate in this case attempted to use a draft version of the will, arguing it was an accurate reflection of the original. The Court disagreed, explaining that “correct copy” means an identical reproduction, such as a carbon or photostatic copy, not just a substantial draft. Because only a draft was offered, the estate could not rely on the one-witness rule, and the will was not admitted. This decision reinforced Florida’s strict approach: without an exact duplicate, two disinterested witnesses are required to prove the contents of a lost will, and the presumption remains that the testator revoked the will by destroying it. If the will was not in the testator’s possession or if others had access to it, the presumption of revocation may not arise, and evidence of the circumstances surrounding the will’s disappearance can be used to rebut the presumption.⁶

What If No Valid Will Exists?

If for whatever reason you have no desire to execute your own will, don’t worry, intestate succession has your back (or maybe not, it all depends on how much you like certain family members). Chapter 732 of the Florida Probate Code outlines how intestate succession works. The statutes governing intestate succession, such as Fla. Stat. § 732.102 and Fla. Stat. § 732.103, determine the order of priority among surviving family members, including spouses, descendants, and other relatives. If no heirs are identified, the estate may escheat to the state under Fla. Stat. § 732.107.

The surviving spouse is the first taker provided for by statute. Fla. Stat. § 732.102. “Spouse” is a legal status in this context and not a state of mind, so it doesn’t matter that you’ve lived together however many years if you aren’t legally married. So, if you’re married and die right before deciding your separation begins, that spouse you can’t stand anymore is the first taker if there’s no will.

In Florida, how much a surviving spouse inherits when someone dies without a will depends on whether the decedent leaves behind children (descendants).

No descendants: The surviving spouse gets 100% of the probate estate, even if the spouse has children from another relationship.⁷
With descendants: The outcome depends on family structure:
1. If all the children are from the marriage and neither spouse has children outside the marriage → the spouse gets 100%.
2. If all children are shared, but the surviving spouse also has children from another relationship → the spouse gets 50%.
3. If the decedent has at least one child from another relationship → the spouse gets 50%.
If there’s no spouse or descendants, the estate passes to the decedent’s parents. If both are alive, each gets half; if only one survives, that parent inherits everything (Fla. Stat. § 732.103(2)).
If no spouse, descendants, or parents survive, the estate goes to the brothers and sisters of the decedent. If a sibling has already passed but left children, those children step into their parent’s place (Fla. Stat. § 732.103(3)).
If no spouse, descendants, parents, or siblings (or their descendants) survive, the estate is split equally between relatives on the mother’s side and the father’s side. This includes grandparents, aunts, uncles, and cousins, but only by blood, not by marriage (Fla. Stat. § 732.103(4)).
If none of the above relatives survive, the estate goes to the family of the decedent’s last deceased spouse. The law treats the spouse as if they died right after the decedent, so only that spouse’s relatives who would have inherited from them can inherit (Fla. Stat. § 732.103(5)).
If there are no qualifying heirs at all, the estate “escheats,” meaning it goes to the State of Florida. Heirs have 10 years to step forward and claim it (Fla. Stat. § 732.107).

Personal Representatives

It goes without saying that wills are not sentient and cannot administer the estate, that’s why decedents assign a personal representative. A personal representative is the person in charge of administering the probate estate. But as you’re about to find out, not everyone is cut out for administering an estate. So, who qualifies as a personal representative? When it comes to who can serve as a personal representative, both individuals and certain entities can qualify.⁸ (Sidenote: Trust companies and other entities must be “authorized and qualified to exercise fiduciary powers”).⁹ Not everyone makes the cut to be a personal representative though. Anyone who

has been convicted of a felony;
has been convicted of abuse, neglect, or exploitation of an elderly or disabled person;
is mentally or physically unable to perform the duties; or
is under 18 years old.¹⁰

For whatever reason, there’s also a little personal representative qualification loophole. A nonresident (someone who is not a legal resident of Florida) cannot be a personal representative unless they’re closely related to the person who passed away. Nonresidents can only qualify to be a personal representative if the individual is:

a legally adopted child or adoptive parent of the decedent;
someone related by lineal consanguinity;
decedent’s spouse, sibling, aunt, uncle, niece, or nephew; or
the spouse of any of those in the bullet point right above.¹¹

Estate Mismanagement and Recovering Assets

If a personal representative is mismanaging the estate, don’t worry the law has your back. But first, let’s go over what qualifies as mismanaging an estate. Under Florida law, proving that a personal representative has mismanaged or improperly administered an estate requires clear evidence of a breach of fiduciary duty or failure to properly manage the estate.

Establishing Breach of a Fiduciary Duty

First, there has to exist a fiduciary duty for there to be a breach of it. A fiduciary duty arises when a personal representative is appointed to manage an estate. Florida law explicitly states that a personal representative is a fiduciary and must observe the standards of care applicable to trustees. This includes the duty to settle and distribute the estate in accordance with the decedent’s will and the Florida Probate Code, acting in the best interests of the estate and its beneficiaries.¹²

Second, a breach occurs when the personal representative acts improperly, in bad faith, or fails to fulfill their obligations, such as failing to account for the sale of estate property, failing to produce estate assets when required, or improperly handling estate funds.¹³ Some specific instances of this include:

Rich v. Narog: John W. Rich, Sr. (the decedent) died on December 30, 2011. His son, John W. Rich, Jr., was appointed personal representative of his estate. Under section 733.710(1), any creditors with claims against the estate had until December 30, 2013, to submit them (spoiler: no creditor claims had been filed against the estate during the requisite two-year time period).¹⁴ On March 26, 2014, the personal representative filed a verified “Statement Regarding Creditors”, affirming that the estate had no known creditors with any claims or demands against it.¹⁵ On November 2, 2020, the personal representative filed a petition for discharge along with a verified final accounting covering the estate’s financial activity from December 30, 2011, through November 30, 2019. The final accounting showed about $2.41 million in payments from estate assets, including 13 payments totaling $715,000 to various creditors and $1.37 million to himself for repayment of a so-called “boat loan.”¹⁶ The personal representative asserted that the loan was made to a corporation and that repayment came from the boat’s sale yet he provided no documentation and because he admitted to commingling estate assets with corporate proceeds, a presumption of misadministration arose, shifting the burden to him to prove the payments were proper (which he failed to rebut).¹⁷
In re Estate of Senz: Moe Senz died in October 1977, survived by his widow and two daughters. His will established a marital trust (later terminated when the widow elected dower) and a residuary trust for his widow and daughters. The named fiduciaries were Moe’s nephew, a CPA, and his attorney, both serving as personal representatives and trustees. Some of the nephew’s inadequacies included: taking over the contents of a safety deposit box belonging to Moe and his wife, giving no receipt, and wrongly including the widow’s bearer bonds as estate property, failing to collect coupons on estate bonds for over a year, reinvesting a maturing certificate of deposit at an interest rate below prevailing market rates, wrongly treating a partnership interest (which was supposed to pass directly to the widow) as an estate asset, omitting $10,000 of income on the estate income tax return, untimely distribution to beneficiaries, and prematurely activating the marital trust before the widow’s election period expired, charged the estate for that service, and later had to unwind it when she elected dower.¹⁸ The trial court found the nephew as «totally inept in handling this estate» but still didn’t remove him because he was not guilty of self-dealing or dishonesty. But the appellate court said “hold my purse” because under § 733.504, Fla. Stat. (1981), a personal representative or trustee may be removed «if sufficient grounds for removal are shown» such as the «numerous instances of mismanagement» above and that dishonesty is not a requirement.¹⁹

So good news (or bad), you don’t have to be an evil liar to mismanage an estate, sometimes you just have to be really bad at your job!

Suspect a Mismanaged Estate? What Now?

First, when mismanagement or maladministration by a personal representative is suspected, any interested party may petition the court for the representative’s removal. These proceedings may be initiated by heirs or other interested individuals, and the court can require the personal representative to provide an accounting of the estate’s assets and evidence of proper management.²⁰
Second, if estate assets have been improperly distributed or misappropriated, the fiduciary or personal representative may be held personally liable. Florida law authorizes recovery of assets or their value if the distribution was improper, ensuring that the estate’s interests are protected against all parties, including distributees who received assets in error.²¹ Additionally, a surcharge action may be brought to recover assets misused or mishandled by a fiduciary, with the goal of restoring the estate to its proper condition.²²
Third, when additional property of the decedent is discovered after the estate has been closed or when further administration becomes necessary, any interested person may file a petition for further administration. This petition must set forth the reasons for reopening the estate, describe the newly discovered assets, and specify the relief sought. The court may then issue orders appropriate to the circumstances.²³
Finally, if the personal representative or fiduciary is found guilty of waste, misuse of assets, or misconduct, the court may appoint a receiver to manage the estate. This measure is particularly appropriate where the fiduciary’s interests conflict with those of the beneficiaries or when the fiduciary fails to act in the estate’s best interest.²⁴

Revoking or Amending a Will

Sometimes your will does not reflect your post-mortem desires anymore. So, if you want to give it a little fix-a-roo before you die, you absolutely can. You can completely trash your prior will and start from scratch with a new one if you revoke the prior will by a subsequent writing or physical act with the intent to revoke and testamentary capacity at the time of revocation.²⁵

Subsequent Writing

A subsequent writing is just a new document that clearly says the old one is no longer valid. Most often, this happens when someone makes a new will or codicil that expressly revokes the prior will. But it doesn’t have to be another will because a properly executed written statement can do the trick, as long as it meets the same formalities required for executing a will.²⁶ Additionally, it could revoke the entire will or a specific portion of it, but you must make that clear in the writing. Sometimes the subsequent writing does not even have to be so straightforward as “I revoke my prior will dated December 31, 2024”, it could just be a new will or codicil that does not mention the old one and has conflicting provisions. If both wills are valid but contain conflicting provisions, the newer will automatically revokes the inconsistent parts of the earlier one.²⁷ Following the subsequent writing rules for revocation are vital or else it’s Dahly v. Dahly all over again. In Dahly, a father’s attempt to revoke portions of his will by marking up the original document and writing a note requesting a new one failed to meet legal requirements. The altered document was neither signed at the end nor witnessed, rendering the revocation invalid under Fla. Stat. §§ 732.505 and 732.506. The original will was therefore admitted to probate.²⁸

Physical Act

So unlike with a subsequent writing, since you are physically trashing your entire will (and it must be the original, not a copy), the whole of it is revoked (aka you cannot save certain provisions/partially revoke).²⁹ For nonelectronic wills or codicils, actions like burning, tearing, canceling, defacing, obliterating, or destroying the document will revoke it, but only if the testator intended that result. For electronic wills or codicils, revocation can happen by deleting, canceling, rendering unreadable, or obliterating the file, again requiring a clear intent to revoke.³⁰ In fact, when it comes to electronic wills, the intent to revoke must be proven by clear and convincing evidence. Some examples of physical acts are included below:

In In re Estate of Dickson, the court found that encircling and obliterating the notarial seal with the word “void,” along with other revocatory language, could amount to a valid physical act of revocation if the testator’s intent to revoke was clearly proven. The case was sent back to determine that intent.³¹

In In re Estate of Kuhn, a will discovered torn in two pieces raised a presumption that the testator intended to revoke it. The appellate court reversed the trial court’s decision to admit the will to probate, ruling there wasn’t enough evidence to overcome the presumption of revocation created by the mutilation.³²

In In re Wider’s Estate, the testator cut out the signatures of both the testator and witnesses from the will. The court concluded that this act constituted a valid revocation under Florida law, since the testator clearly intended to revoke and never re-published or re-executed the will as required by statute.³³

In Stewart v. Johnson, the court applied the doctrine of dependent relative revocation, which allows a prior will to be revived if a later revocation was conditional on an invalid new will. The testator had destroyed an earlier will intending to replace it with a new one that turned out to be invalid due to improper witnessing. The court held that the testator did not intend to die intestate, so the earlier will was reinstated.³⁴

Conclusion

If there’s one thing wills prove time and time again, it’s that death might be inevitable, but drama definitely isn’t optional. Wills vanish and families feuds arise. and somewhere in the middle of it all, a personal representative swears they “meant well.”

The good news? Most of this chaos is preventable if you speak to a licensed attorney. So do yourself (and your heirs) a favor: write your will, sign it properly, and stash it somewhere safer than your junk drawer. Pick a personal representative who can handle receipts, relatives, and reality checks in equal measure because the only thing more unpredictable than Miami weather is what happens when the family realizes there’s no will.

In the end, a little planning goes a long way toward keeping your legacy out of court and your family group chat civil. Because while wills can be messy, understanding them doesn’t have to be and once again folks, this article is for educational and informational purposes only and does not constitute legal advice. Reading it does not create an attorney–client relationship with La Rosa Law. Every situation is unique—consult a licensed Florida attorney for advice about your specific circumstances.

Footnotes

Elena Maria Marty-Nelson et al., Florida Wills, Trusts, and Estates: Cases and Materials 5th ed. (revised 2024) (Carolina Academic Press). ↩
Id. ↩
Hamilton v. Morgan, 93 Fla. 311, 112 So. 80 (1927); In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953); Am. Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. Dist. Ct. App. 1998). ↩
1 Florida Estates Practice Guide § 8.22 (2025); 1 LN Practice Guide: FL Estate & Probate Practice § 7.10 (2025). ↩
Fla. Stat. § 90.601; Fla. Stat. § 90.603. ↩
1 Florida Estates Practice Guide § 8.142 (2025). ↩
Marty-Nelson et al., Florida Wills, Trusts, & Estates (5th ed. rev. 2024). ↩
Fla. Stat. § 733.302; Fla. Stat. § 733.305. ↩
Fla. Stat. § 733.305(1). ↩
Fla. Stat. § 733.303(1). ↩
Fla. Stat. § 733.304. ↩
Fla. Stat. § 733.609; Fla. Stat. § 733.602. ↩
Fla. Stat. § 733.504; § 30.110 Removal of Personal Representative. ↩
Rich v. Narog, 366 So. 3d 1111, 1114 (Fla. Dist. Ct. App. 2022). ↩
Id. ↩
Id. ↩
Id. at 1119-1120. ↩
In re Estate of Senz, 417 So. 2d 325, 327 (Fla. Dist. Ct. App. 1982). ↩
Id. ↩
Laramore v. Laramore, 64 So. 2d 662; Security Trust Co. v. Cannon, 165 So. 2d 834. ↩
Fla. Stat. § 733.811. ↩
Sugarman v. Galbut, 666 So. 2d 266. ↩
Fla. Prob. R. 5.460. ↩
17.09 Special Rules May Apply in Certain Actions. ↩
Fla. Stat. §732.505; Fla. Stat. § 732.506. ↩
Fla. Stat. § 732.505(2). ↩
Fla. Stat. § 732.505(1). ↩
866 So. 2d 745. ↩
Fla. Stat. § 732.506. ↩
Id. ↩
590 So. 2d 471. ↩
286 So. 2d 276. ↩
62 So. 2d 422. ↩
142 Fla. 425. ↩