WILL WITNESSING REQUIREMENTS IN FLORIDA
Updated: Jul 5
What are the will witnessing requirements in Florida? To execute a Last Will and Testament in Florida, a Testator is required to follow a specific procedure. If a Testator fails to follow the required formalities, a court may determine that the will is not valid, and a Testator’s probate assets will pass according Florida’s default scheme of distribution. In order for a will to be probated, the statutory requirements for its execution must be strictly followed. These requirements are common law requirements that go back to the enactment of the Statute of Wills in the year 1540.
SOME REASONS FOR STRICT WITNESSING REQUIREMENTS
The primary reason that Florida law requires strict compliance with the formalities when witnessing a will, which are not otherwise required for documents such as certain trusts and most contracts, is the courts want to prevent fraud. By the time a will goes into effect, a Testator has become a decedent and is no longer able to confirm that the instrument genuinely reflects his or her final wishes.
The courts also want to prevent wrongdoing such as duress and undue influence. If the will has to be signed and attested to in front of multiple witnesses, it is unlikely that the testator can be coerced into signing an instrument that does not genuinely reflect his or her true wishes.
The absence of strict formalities would also lead to more will contests, which are often time consuming, costly to the estate, acrimonious, and from the court’s perspective a waste of judicial resources.
On the other hand, a properly executed Last Will and Testament can ensure that the Testator will be able to take care of his or her spouse, children, and other loved ones. Or benefit society through charitable contributions.
STATUTORY REQUIREMENTS FOR WITNESSING
Pursuant to Florida Statute 732.502 (2019), every Will must be in writing (Florida does not recognize oral wills), and the following formalities must be performed for the execution of a Will or Codicil:
1) The testator must sign the will at the end of the will, or the testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction,
2) The testator’s signature or acknowledgement that either a) the testator has previously signed the will, or b) that another person has subscribed the testator’s name to the will, must be in the presence of at least two attending witnesses, and
3) The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
In Florida, and in most common-law states, these are the minimal requirements for the execution of a valid. There are also other requirements that, if not followed, may lead to the Will being found invalid, or lead to a will contest. For example, the will must be signed at the end of the will. There are also requirements and caveats as to who can be a witness, such as whether they are competent or disinterested.
In addition to this, it is also recommended that a Will be accompanied by a self-proving affidavit, which proves the signatures without having to call witnesses. Also keep in mind that Florida law requires that a self-proving affidavit be notarized. If the will is an “electronic will”, which are not yet allowed in Florida, but will be after July 1, 2020, the witnessing and notarizations requirements are an entirely different and more complex topic that I shall discuss in future posts.
In conclusion, if you want to ensure that a court will not find your Last Will and Testament to be invalid, in which case your assets may not pass according to your wishes, you should familiarize yourself with all of the statutory and other requirements, but would be best advised to hire an estate planning attorney to draft the Will and facilitate its execution.
*Current as of June 29, 2020.
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Michael N. Bress, Esq. is managing attorney at BRESS LAW FIRM, PLLC, a Family Law, Estate Planning, and Landlord-Tenant Law firm located in Aventura, Florida, but serving clients throughout Miami-Dade County. You can contact Michael at (954) 336-8049, by email at Michael@BressLaw.Com, Or go to the Bress Law Firm website at BressLaw.Com.
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