With the prevalence of do-it-yourself online estate planning tools, there has been an increase in the number of Florida residents that sign Last Will and Testaments that are incomplete or improperly executed. If the testator passes away having executed a Will with inadequate or ambiguous language, it may leave the Will subject to interpretation over the testator’s true intent or subject to challenge over its validity. If the Last Will was not executed in accordance with the strict standards of Florida law, the Will may be invalidated causing the decedent’s estate to not be distributed in accordance with their written wishes.
Because any person that sign a Will is unable to verbally verify the authenticity of the Will they executed after their death, Florida law’s standard practice for Will execution is intended to protect the decedent’s intentions from exploitation after their death. The corner stone of this practice requires the testator and the witnesses to sign the Will twice in the presence of each other, i.e. first to memorialize the Will and again to validate their signatures within the Will’s self-proving affidavit. While duplicative in person seems extreme, this practice is the cornerstone of Florida case law and procedural requirements designed to validate and authenticate Wills on their face without having to hear testimony of Will witnesses.
FLORIDA LAW REQUIREMENTS FOR VALID LAST WILL EXECUTION
In the State of Florida, the testator (signor of the Will) must prepare and execute their Will in accordance with Florida Statutes section 732.502. This ensures the Will the validity of the Will is “proved” under the law. Generally speaking, Florida Statutes section 732.502 formalities require the testator comply with state law signing of the Will with valid acknowledgement by the testator and witnesses in the presence of each other. A Last Will that is not signed in accordance with these formalities may not be authenticated by the Court and, as a result, the probate may instead be administered under the Florida Laws of Intestate Succession.
In order to be admitted to probate, the testator’s Last Will (i) must be in writing and executed at the end by the testator, (ii) execution of the Will must occur in the presence of two subscribing witnesses who witness the testator sign, and (iii) the witnesses must sign the Will in the presence of the testator and in the presence of each other. These basic formalities help to preserve the integrity of the Will because it establishes that witnesses were present to verify the testator’s actions and testamentary capacity at the time of signing the Will.
DEPOSITING THE LAST WILL WITH THE COURT
In accordance with Florida Statutes section 732.901, any party in possession of the original Will of the decedent (deceased testator) and whom receives notice of the decedent’s death must deposit the Will in their possession with the Clerk of Court in the County of decedent’s residence within ten (10) days. Once the Will is deposited with the probate Clerk, the Clerk shall scan the Will into its electronic recording system and preserve the original Will on file in its original form for at least 20 years. Once docketed in the Clerk’s system, the petitioner to Court for probate of the decedent’s estate must establish the validity and authenticity of the Will using one of three authentication methods below.
SELF-PROVING WILLS SELF-AUTHENTICATE
The easiest way to authenticate a Last Will is to show the Court it is “self-proving” and executed in conformity with Florida Statutes section 732.502 and in compliance with Florida Statute section 732.503. A Will is deemed self-proving if it was signed (i) at the end of the Will by testator and two attesting witnesses who sign in the presence of each other, and (ii) there is a notarized affidavit at the end of the Will attesting to the validity of the testator and witness signatures. The purpose of the self-proving affidavit is to allow for verification of the authenticity of the testator and witness signatures in the Will after testator’s death in lieu of having the witnesses testify before the Court regarding the same.
If a Will is not deemed self-proving on it face, other evidence that demonstrates that the Will was properly executed must be presented to the Court which will increase the costs and length of time of estate administration, i.e. to identify, locate, subpoena and hear testimony of the subscribing witnesses. If the subscribing witnesses to the Will cannot be located, an affidavit of the Will’s preparer or notary of the Will may suffice to prove the Will before the Court. Preparing a Last Will with self-proving affidavit, i.e. executed twice by the testator and witnesses before being notarized after all parties have signed, is the best practice for ensuring that the testator’s Will is admitted into probate after death without issue.
PROVING NON-SELF-PROVING WILLS
Florida Statutes section 733.201(2) provides an alternative route for authenticating a Will without a self-proving affidavit, i.e. namely, if one of the subscribing witnesses to the Will can offer sworn written testimony to the Court that the person believes the writing exhibited to be the true Will of the decedent that they witness them sign. In this case, the witness would execute an Affidavit or Oath of Witness in front of a Florida notary (commissioner) appointed by the Court or Clerk of Court notary at the Courthouse. If an Oath of Witness cannot be filed, the oral testimony of the witness to the probate Court judge will suffice to prove the Will, i.e. if the witness can testify that he or she believes the Will presented before the Court to be the true Will of the decedent.
If the witness offers their testimony to the Court about circumstances surrounding the Will’s document execution, the judge will likely want to confirm that the witness saw the testator sign (or that testator told them he/she signed) and that the witnesses sign in the presence of the testator and each other. If either or both of the subscribing witnesses cannot be located, cannot be identified or have died, Florida Statutes section 733.201(3) allows for nominated Personal Representative in the Will to offer sworn testimony validating the Will, i.e. by providing if he or she believes the Will to be authentic and if they have knowledge as to specific contents of the Will.
PROVING LOST OR DESTROYED WILLS
Often a family member may have a copy of the testator’s original Will but not the original Will itself. In this case, the proponent of the lost Will (the person offering the copy of Will for probate) can file a copy of the Will with the probate court and rely on Florida Statute section 733.207 to request the Court admit the ‘lost’ Will as if it were an original.
It is well-settled under Florida law that when an original Will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the Will with the intent to revoke it. See In re Estate of Parker, 382 So.2d 652 (Fla. 1980). That being said, the proponent of the lost Will can satisfy the burden of introducing competent, substantial evidence to overcome the presumption that the lost Will was destroyed by the testator. The first step to overcome the presumption of revocation is by the establishment and admission to probate of the lost or destroyed Will pursuant to Florida Statute section 733.207.
In order to authenticate a lost Will, any interested person can petition the Court to demonstrate their knowledge of the full and precise terms of the lost or destroyed Will, verify the specific content of the Will by the testimony of two disinterested witnesses to the Will, or, if a correct copy is provided, proving precise terms of the lost Will by at least one of the disinterested witnesses to the Will.
To learn more about executing a self-proving Last Will and Testament prepared in accordance with Florida law, please contact us to schedule a telephone or ZOOM videoconference consultation with an experienced Fort Lauderdale tax, probate and estate attorney. So we can advise you best about your legal and tax issues, please take a moment to complete the Firm’s Legacy & Estate Planning Questionnaire and return it to me by email at lrhoden@wealthprotection.us to schedule a consult meeting.
