Articles Posted in Estate Planning and Documents

Pauline, a lifelong resident of Broward County, Florida, has finally decided to consult with an attorney about drafting a will. Included among the property she wishes to devise is her house, stocks, bonds, her car, savings accounts, and personal property contained inside her home.

An avid collector of antique vases for almost 30 years, Pauline has accumulated a large assortment that brings her much joy, although most of the pieces themselves are not valuable. Upon her death, she wishes to distribute specific vases among her many grandchildren.

As a general rule, it is difficult to successfully update or modify gifts in a will without executing a new will or create an amendment to a will, known as a codicil. Although it makes sense to update a will when one wishes to make significant modifications in regard to high-valued property or the people receiving under a will, it is often a far too complicated process when only tangible personal property, such as the antique vase collection, is concerned. Pauline is constantly adding new items to her collection, and as the proud mother of several children, welcomes a new grandchild into her life almost every year.

Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting 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 attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.