Proving a will by Petition to Appoint Commission

Before a will can be admitted to probate for administration, it must first be proven for its validity according to the terms in Florida Statute §733.201. Most often, a will is either self proving or can be proven by the oath of an attesting witness. If the oath of a witness is necessary, the witness usually takes the oath at the courthouse in front of a deputy clerk or judge. This is the most efficient method; however, there are some instances where the witness is either unwilling or unable to take the oath at the courthouse. If you have a will with no self-proof affidavit and are unable to get a witness to the courthouse, you have the option to do a petition to appoint commission. 

What is a petition to appoint commission?

A petition to appoint commission is a process where you petition the court to appoint a commissioner to take the oath of a witness outside of the courthouse. By doing a petition to appoint commission, the witness’s oath can still be obtained even if they can’t make it to the courthouse. Instead, the oath is administered wherever the witness is.

What happens when you petition to appoint commission?

Once petitioned, the court can appoint a commissioner. The commissioner must be qualified to administer an oath. The qualified commissioner must then go to where the witness is to administer and certify the oath of witness to will. When the commission has been properly executed, the commissioner files the necessary documents, and the will can then be admitted to probate.

Florida Probate Rule 5.230: “Commission to Prove Will” describes the details of a petition to appoint commission:

(a) Petition. On petition the court may appoint a commissioner to take the oath of any person qualified to prove the will under Florida law. The petition must set forth the date of the will and the place where it was executed, if known; the names of the witnesses and address of the witness whose oath is to be taken; and the name, title, and address of the proposed commissioner. 

(b) Commission. The commission must be directed to a person who is authorized to administer an oath by the laws of Florida, the United States of America, or the state or country where the witness may be found, and it shall empower the commissioner to take the oath of the witness to prove the will and shall direct the commissioner to certify the oath and file the executed commission, copy of the will, oath of the witness, and certificate of commissioner. An oath of the commissioner is not required.

(c) Mailing or Delivery. The petitioner or the petitioner’s attorney must cause the commission, together with a copy of the will, the oath, and the certificate of commissioner, to be mailed or delivered to the commissioner.

(d) Filing. The executed commission, copy of the will, oath of the witness, and certificate of commissioner must be filed.

Is proving a will part of every estate?

In most cases where an attorney has supervised the execution of estate planning documents, the will is self-proving. In other cases, an oath of one of the witnesses is necessary. This part of an estate is not usually included with the costs quoted by many attorneys. There is usually a fee associated with proving up a will that for whatever reason is not self-proving.

Contact us today if you require a petition to appoint commission.

A petition to appoint commission is an effective way to prove a will if there is no self-proof affidavit and the witnesses are unwilling or unable to take the oath at the courthouse. If you need of a petition to appoint commission, contact us today.

Written by Alison N. Koukoulis

Edited by Patrick D. Quarles


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