Earlier this week we published a blog post giving you a brief overview of will contests in Florida probate administrations. One of the ways that a will in Florida can be contested is if the will was not properly executed. This means that the will was not executed with the formalities required to make the will effective under Florida law. If you or a loved one pass away without a validly executed will, the assets will be transferred according to the Florida intestacy laws, which may or may not result in distribution of your assets in a way you or your loved one intended.

Under Florida law, “A testator [person who is executing the will] must strictly comply with the requirements of the statute in order to make a valid will.” Price v. Abate, 9 So. 3d 37, 38 (Fla. 5th DCA 2009).

The requirements for the valid execution of a Florida will are set out by section 732.502, Florida Statutes. The requirements are:

  1. The will must be in writing.
  2. The testator must have testamentary capacity. This is not specifically set out in section 732.502, but it is a requirement for all estate planning documents.
  3. The testator must either sign the will at the end; or
  4. If the testator cannot sign the will at the end, then a person may sign for the testator while “in the testator’s presence and by the testator’s direction.” Section 732.502(1)(a)(2), Florida Statutes (2016). If the testator cannot sign, then these last two elements are absolutely essential to having a validly executed will in Florida. In the Florida probate administration, the witnesses will likely need to be called to testify that they saw this exact process occur if there are any challenges to the validity of the will.
  5. The will must be signed by the testator or by a person at the testator’s direction in the presence of two witnesses.
  6. The two witnesses must sign the will in the presence of the testator and in the presence of each other. This means that the testator and both witnesses must be in the same room when everyone signs and they all must sign while all three people are present.
  7. If you have a codicil, which is basically an amendment to a will, the codicil must be signed with the same process as the signing of a will.

As you can see, the requirements under Florida law for the execution of a valid will are not complicated. However, it is important to remember that the execution of a will must be done in exactly the way set out above. If there are any issues or doubts about whether one of the execution requirements have been completed, there is a possibility that the will can be disqualified in probate.

For example, in a fairly recent case, the Fourth District Court of Appeals stated that if one of the witnesses did not sign the will in the presence of the testator, it “creates a genuine issue of material fact as to the initial execution” of the will. Helfenbein v. Baval, 157 So. 3d 531, 533 (Fla. 4th DCA 2015). Therefore, if there is any hint of a fault in the execution of a will, the will may be subject to litigation in the testator’s probate administration.

If you are thinking about getting a will, or would like to update your will, we strongly recommend that you consult with an attorney and get your will through your attorney. Wills are not complicated instruments. However, if a will is drafted incorrectly or executed incorrectly, it can result in costly and time consuming litigation after your death. Most worrisome is that an incorrectly drafted or executed will may later be held by a probate court to be invalid, and then your wishes will not be carried out by the will. The investment of hiring an attorney to handle your estate planning will likely pay off in the long run.

At Richert Quarles P.A., we offer affordable wills to our clients. All wills purchased through our firm include consultation with an attorney, custom drafting so that you can be sure the will follows your wishes, and an attorney supervised execution of the will. You will know that the Florida will that we prepare for you is drafted correctly, and is executed following the law. Contact us today to schedule a free consultation or a free estate plan review with one of our attorneys.

 

 

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