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.

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[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.

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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.'

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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."

Using Skype for deposition in Italian estate

My co-counsel and I obtained permission from the local Circuit Court to use Skype for our client's deposition in a probate case involving an Italian decedent. A Georgia judge made headlines earlier this year when he allowed Skype to transmit an unavailable witness' testimony in a criminal trial. Several other cases have made news since then.

For our equipment, we used my MacBook Pro, which has a good video card (important), a high-speed broadband Internet connection (critical), and a 30-inch high-definition television to display the digital video (with a mini-DVI to HDMI converter) so that opposing counsel could easily see. I also connected the audio to the television, which is superior to my MB Pro's speakers. You could even use a digital projector to make the image literally larger than life, although the video resolution on both ends would need to be HD to make the projection look good. The 30-inch HD television worked well for our small deposition's purposes.

Both the audio and the video flowed perfectly, allowing everyone to see and interact as if our client were in the room rather than over 4,000 miles away. Everyone, including the court reporter, was impressed with the flawless transmission. In fact, Skype performed so clearly that we could hear our client's clock ticking in the background without missing even part of a tick (or tock).

The simple aspect of Skype is its availability on every major operating system's platform from Linux to Windows and even mobile editions (not advisable for this purpose). Skype encrypts the transmission, which is also comforting in this type of setting. Skype-to-Skype video conferencing is free, and there's a premium (paid) subscription that allows multiple participants simultaneously.

We considered using Regus, which offers professional video conferencing around the world. The pricing for their service was relatively good considering all factors (around $1,000 for the US (FL) and Italy). However, free -- other than the electricity consumed and the Internet access, for which you must pay anyway -- is difficult to beat!

At the end of the deposition, the court reporter offered an excellent suggestion: allowing expert witnesses to testify via Skype. This would be extremely helpful in another complex trust/estate litigation case because our expert is a nationally-known lawyer who might need to travel for a day or more using the traditional approach, often waiting most of that time. With Skype, he could offer his expert testimony exactly when necessary and from anywhere, provided he had access to a webcam (with some external models produced by Logitech and Microsoft offering up to 1080p HD video and surround sound as well), Skype, and a broadband Internet connection.

I don't have time for more detailed postings such as this, but I view this one worthwhile. I hope that it helps someone. Incidentally, you could achieve the same or perhaps even better results using Apple's Facetime, AOL video messaging (which is also compatible with Facetime), Google Voice, MSN or Yahoo messenger, and so on. None is as ubiquitous as Skype, though.

On a personal note, you can even use Skype to share a newborn baby's video with your family. We did just that using my MB Pro a couple of years ago. With most laptops now including good to very good webcams and many hospitals offering high-speed wireless Internet, this is an amazing way to share free streaming video (well, other than the cost of having the child, of course!). There's no end to the ways that you can use Skype for business or personal purposes.

Resources on general estate planning information

Clients and even other advisors often ask where to find resources on general estate planning information, such as the differences between wills and revocable living trusts or the basic steps of the probate process. The Internet is a wonderful tool, but can also be overwhelming and does not necessarily deliver the most useful information at the top of your search results. Following are several of my favorite resources on fundamental estate planning issues and questions.

First, The Florida Bar's consumer pamphlets on estate planning are excellent. Unfortunately the website's auto-generated links are terribly long. Here is the link to the relevant pamphlets on wills, trusts, and estates, or you may use this much simpler shortcut link: http://tinyurl.com/FlaBarPamphlets.

For example, the pamphlet on "The Revocable Trust in Florida" discusses some of the common myths regarding these topics. For instance, all assets are not subject to probate after someone passes away. It also covers "Do I benefit by avoiding probate?" and cites the general example of a multi-jurisdictional probate situation -- where someone owns real property in multiple states -- as one illustration of the proper use of a revocable trust.

The Florida Bar's website contains a vast amount of additional resources. In another blog post, I mentioned the Florida Bar Journal, the archives of which are available for more than ten years. You may also view any Florida lawyer's profile via the "Find a Lawyer" online directory.

Second, the American Bar Association's Section of Real Property, Trust and Estate Law website, which was recently redesigned along with the rest of the ABA website, also offers numerous resources from basic to very advanced information (including complete continuing legal education materials from previous programs). The "Estate Planning [Frequently Asked Questions" pages cover many basic estate planning and probate/trust administration issues.

The third favorite is CCH's excellent "Financial Planning Toolkit." I have praised this site and CCH's companion "Business Owner's Toolkit" for years. Each features an expandable "tree" of information on relevant topics. An entire portion of the Financial Planning Toolkit is devoted to estate planning, which explains basic and more advanced concepts and techniques to achieve a person's planning goals.

I hope that others find these resources useful. Everyone should of course consult their own professional advisors in their own state to determine how to implement planning that achieves their specific goals based on their circumstances. Being informed with accurate general information should help to facilitate the planning process, though.