How Failing to Follow the Rules Can Invalidate a Florida Will
One of the easiest ways to encourage a challenge to your will is not to observe the proper legal formalities. A last will and testament need not be a long, complicated document. But it does need to comply with certain basic legal requirements. Failure to comply can make it much easier for a disgruntled relative to contest the validity of the will after your death, subjecting your estate to needless and costly litigation.
With that in mind, here are the basic rules you need to follow when it comes to making a valid Florida will.
- The Will Must Be in Writing.
You might have heard of situations where someone, usually on their deathbed, makes an “oral will” stating the disposition of their property. This is a non-starter in Florida. State law requires all wills to be in writing. And by “writing,” we mean a typewritten document. There are states that will admit handwritten or “holographic” wills that are not witnessed. Florida is not one of them.
- The Will Must Be Witnessed.
Which brings us to the next important legal formality: A will needs to be witnessed by at least two other legally competent adults. The role of the witnesses is actually quite limited. They only need to know the document you are signing is intended to serve as your will. The witnesses do not have to read the actual will or know anything about its specific contents. But the witnesses do need to sign the will, both in the presence of one another and yourself. In other words, you cannot have the witnesses sign at different times in different locations.
- The Will Should Be Notarized.
While not actually required by Florida law, it is good practice to to have a will signed and witnessed in the presence of a Notary Public. Why? Because the Notary can prepare what is called a “self-proving affidavit.” This affidavit can make it much easier to authenticate your will after your death–and more importantly, discourage any potential challengers.
- Always Keep the Original Will in a Safe Place.
A probate court needs to see an original, signed will. You generally cannot probate photocopies. So it is incumbent upon you to keep the original will in a safe location. At the same time, that location needs to be accessible to your executor when the time arrives. So for instance, do not keep your will in a safe deposit box where you are the only one with access privileges.
- Call a Lawyer If You Have Any Questions.
Many people run into trouble because they try to write their own will without any legal assistance. This is almost always a mistake. A will is a legal document that needs to follow all of the formalities described above.
On the other hand, if you are in a situation where you believe a family member’s will is invalid and has not followed all of the requirements described above, you should consult with an experienced Pompano Beach estate & trust litigation attorney who can advise you on what steps to take next. Contact the offices of Mark R. Manceri, P.A., Attorney at Law today to schedule an initial consultation.
