Saturday, February 4, 2012

Validity of wills in Florida and how to prove them

Florida is relatively clear regarding its will requirements. In some cases, however, you must take additional steps to prove a will. Following are excerpts from a helpful article written by William T. ("Bill") Edy, Esq., which was published in the August 24, 2008 issue of "The News-Press" (the newspaper of the Fort Myers area, where I started practicing law). It's no longer available via The News-Press, but has been reproduced elsewhere. Much of the article was derived (in many cases paraphrased) from the Florida Statutes (primarily the Florida Probate Code, which is available here) and/or the Florida Probate Rules (available here).

"Last week, I mentioned that any document purporting to be a last will, or document attempting to make dispositions of a person's property after his or her death, must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the 'testator' [or 'testatrix'], is dead. Even if they believe the will is invalid or fraudulent, [section 732.901 of the] Florida Statute[s] requires that the custodian of the will deposit the will with the court for the proper county, where the probate judge will decide if it is valid and should be admitted to probate. Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. Upon the filing of a petition for probate, the judge will decide if it is a valid will.

[Section 732.502 of the] Florida Statute[s] sets forth the requirements for a will to be valid. Any document which attempts to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two witnesses. No particular form of words is necessary to the validity of the will if it is executed with these formalities required by law. The proper execution of the will must be proven to the satisfaction of the probate judge. Probate comes from the Latin word meaning 'to prove.'

There are three ways to prove the proper execution of the will. The first method is by the inclusion of an affidavit attached to the will, which is signed by the two witnesses stating that they signed their signatures above the affidavit in the presence of the testator, who also signed above the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The notary must state that the notary either knows the persons taking this oath personally or has seen acceptable identification. The suggested words for the affidavit are set forth in Florida Statute[s section] 732.503 entitled [']Self-proof of will.[']

Attorneys who prepare wills generally attach this self-proving affidavit to the will because it makes it much easier to commence the probate process. FS 733.201[(1)] states that self-proved wills may be admitted to probate without further proof.

If the will is not a self-proofing will, the second way to prove the will is by the oath of one of the witnesses. [(See FLA. STAT. s. 733.201(2).)] One of the witnesses will be required to sign an oath in front of the judge or deputy clerk of court or commissioner appointed by the court. A commissioner is a notary public that the judge appoints to take the witnesses’ oath based upon the request made by the filing of a written motion. A commissioner is generally used when the witnesses are not located in the same county.

The third way to prove the will is by the oath before the judge, clerk of court, or commissioner signed by the personal representative nominated by the will, whether or not the personal representative is named a beneficiary of the estate. If the personal representative nominated in the will is not available, then the oath may be signed by any person who is not interested in, or a beneficiary of, the estate. The oath must state that the will is believed to be the last will of the decedent. [(See FLA. STAT. s. 733.201(3).)]

Individuals moving to Florida often ask the Florida attorney if their will signed in their former state is valid. [Section 732.502(2) of the] Florida Statute[s] states that any will, other than a holographic or [a] nuncupative will, executed by a nonresident of Florida is valid if the will would be valid in the state where the will was signed. If the will does not meet the Florida requirements it may become expensive to prove to the judge that the will would be valid in the other state unless it was already admitted to probate in that other state. A holographic will is a will written in the handwriting of the testator. A nuncupative will is an oral will.


[Section 736.0403(2)(b) of the] Florida Statute[s] also provides that the testamentary aspects of a revocable trust, that is, those aspects which attempt to transfer interests to others after the death of the trust maker, must be executed with the same formalities of the will and may be proved in the same manner as a will. Recently, a client who executed a trust some time ago sent me a courtesy copy of an amendment to his trust to place in his file. I had to call him and inform him that the amendment was not valid because it was not properly executed, even though he had signed the document he prepared himself. Because not all states have this requirement, it is dangerous to use a form from a self-help book or off the Internet.


If you have signed a will, you should have the original in a safe place and review it to ensure that it is a valid will. You should review it or ask an attorney to review it every few years, especially if you have married or have adopted a child after signing the will, which is called 'pretermitted.'


Assuming the will is valid, the attorney handling the probate process will have to decide whether the estate must utilize formal administration [(see FLA. STAT. ch. 733)], or whether the estate qualifies for one of the simpler administrations for small estates [(see FLA. STAT. ch. 735)], which will be the subject of next week’s article."