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Proper Will Preparation and Execution

Written by on Apr 26, 2010| Posted in: General

It is imperative that a person’s Last Will and Testament be properly prepared by a skilled and competent estate planning attorney and that the execution of this Last Will and Testament is performed appropriately and according to Florida Statutes.   Most recently-drafted Wills are self-proved wills, executed in accordance with Florida Statutes 732.502 and 732.503.

Florida Statute 732.502 sets forth the exact execution requirements for a Will to be valid.  These are the formal steps that must be taken to ensure that a Will was validly signed by the testator and the attesting witnesses.  If a Will is executed without a “self-proving affidavit,” then at the time of the decedent’s death, the witnesses to the Will will need to sign oaths in front of a court official to swear that the Will submitted is the Will the testator signed in front of them.  This can present obvious problems if the testator executed a Will 20 years before death.  Fortunately, the legislature contemplated this problem and provided a mechanism for “proving” the authenticity of the Will at the time of execution.  Florida Statute 732.503 sets for the requirements for a “self-proving” Will. 

What happens if the Will is not self-proving?

If a Will is not self-proving and it appears that the attesting witnesses cannot be located (for example, due to their death prior to the death of the testator or testatrix), or the attesting witnesses have become incompetent, or their testimony cannot be obtained within a reasonable time, “a Will may be admitted to probate upon the oath of the personal representative nominated by the Will,”  whether or not the nominated personal representative is an interested person in the estate (a  named beneficiary), or upon the oath of any person having no interest in the estate under the Will (not a named beneficiary) stating that the person believes the writing exhibited to be the true last will and testament of the decedent.  Florida Statute 733.201.

What happens if the original Will cannot be found?

A lost Will is presumed to be destroyed by the testator.  Realistically though, people often misplace their original documents or fail to tell friends and family where the documents are located and it truly is lost and not destroyed.    While it is possible to have a photocopy of a fully-executed Will established and admitted to probate pursuant to Florida Statute 733.207, it is not always a successful endeavor.  Thus, great care should be taken to safeguard an original Will.    

If a Will or Codicil is discovered at a later date, any interested person may Petition the Court to revoke the probate of an earlier Will or may file to probate the later Will or Codicil pursuant to Florida Statute 733.208.  No Will or Codicil may be offered for probate after the testate or intestate estate has been completely administered, and the personal representative of the estate has been discharged by the Court.

What happens if a testator tries to modify his Will himself with handwritten notes?

If a testator or testatrix makes written notations, additions and/or deletions on their original Will and does not follow the proper execution formalities noted above, then those notations and additions and/or deletions to the original Will are not valid.  The Court will view them as “mere wishes” and will treat those notations, additions and/or deletions as not being compliant with Florida Statutes regarding the formality required to execute an appropriate and valid Will. 

Ironically, if a person makes written notations, additions and/or deletions on his or her trust even without having two witnesses execute the document, the changes may be honored a new trust code provision that allows the intent of the settlor to override the traditional rule requiring witnesses to sign their names to any proposed changes.

Some people try to save money by buying a “do-it-yourself” Will kit, but in my experience these result in mistakes that end up costing far more in probate legal fees than going to a lawyer to make a proper Will would have cost in the first place.  In the long run, the money spent hiring an attorney to prepare a valid Will is well spent and will save your heirs more money than it costs you.

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