Florida Probate Litigation Lawyer Blog
Florida law on the execution of wills makes it clear that not all wills are created equal. One of the most important things to know when drafting your will is the law governing the validity of that document. In Florida, if a will does not meet certain required formalities, then the will is considered invalid and your estate becomes subject to the laws of intestacy, which will likely result in an outcome that neither you nor your heirs expected.
Florida Statute Section 732.502 details the formalities that ought to be followed if a testator wishes for his or her will to be recognized as a valid document upon death. This section requires that every will be (1) in writing, (2) signed by the testator (i.e., the person making the will), and (3) witnessed by at least two attesting witnesses. While this may sound simple enough, each requirement is accompanied by additional conditions which can lead to devastating consequences if overlooked and not adhered to.
Laws regulating the valid execution of wills vary among the different states, making it important for every testator to know the laws that apply in the state in which he or she resides. Knowing the implications of being a resident of one state, while executing the will in another, is an additional aspect to keep in mind and inquire about.
WRITING REQUIREMENT
In Florida, “nuncupative wills” (i.e., oral wills) are not valid, even if such wills are videotaped. Similarly, holographic wills, or wills written entirely in the testator’s handwriting and signed by the testator, are not recognized. The holographic will, while it satisfies the first and second requirements under Florida law, fails to meet the third requirement.
TESTATOR’S SIGNATURE
Florida law is very specific about the placement of the testator’s signature. While the law is lax on what would satisfy the “signature” component, it is strict on the “signature” being placed at the end of the will. For example, the second prong (being signed by the testator) is likely to be satisfied with an “X” or some type of mark that indicates the testator’s intent to sign, but only if it was placed at the end of the document. Florida law also allows for another person to write the testator’s name on the will so long as it is done in the testator’s presence and at the testator’s direction. Again, the name must be signed at the end of the will.
ATTESTING WITNESSES
In Florida, witnesses are an essential element of the validity of a will. Witnesses are required to observe either the testator signing the will, or acknowledging that he or she previously signed the will. Additionally, if another person will be signing the will on the testator’s behalf it must be done in the presence of at least two attesting witnesses. The law also requires that the witnesses sign in each other’s presence and in the presence of the testator.
CONCLUSION
As it should be apparent by now, making a valid will in Florida requires a lot of attention to detail and knowledge of the law. Even a codicil, which is a separate document that serves to amend a will, needs to be executed with the same formalities as are required for a will. Do not let oversight invalidate your intended estate plan. Get it right the first time by contacting the experienced attorneys at Chepenik Trushin, who are ready, willing, and able to assist you with all of your estate planning needs.
