One of the primary purposes of Estate Planning, and especially self-proving wills, is to ensure that your wishes are properly executed.
However, with the prevalence of one-size fits all online tools, many people are left with insufficiently executed documents.
That’s why it’s crucial to ensure that your Estate Planning documentation complies with your local jurisdictions to avoid any unintended consequences.
Proving Will Validity
When a Last Will and Testament is deposited with the Probate Court for administration, how exactly does the Court know the document is valid?
Typically, a Will must be judicially authenticated through evidence and testimony.
However, Florida Statutes provides a way in which to avoid this time consuming and costly process. According to section 732.503 of the Florida Probate Code, a Will may be “self-proving” if it conforms to the legal requirements of creating a valid Will (as set forth in Florida Statute 732.502) plus, in addition to signing the Will in the presence of two qualified witnesses, it contains an affidavit at the end signed by the testator in front of a notary attesting to its validity.
To comply with F.S. 732.503, the testator, the two witnesses and the notary must all declare the document as being self-proving using specific language set forth in the statute, or something substantially similar thereto. Further, all signatures must be completed under oath during the same sitting and in the presence of each other.
The statutory acknowledgement language that must be stated “at the end” of the Will reads as follow:
STATE OF FLORIDA
COUNTY OF ________________________
I, __________________, declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
We, _______________ and ________________, have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.
Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification and (type or print name of second witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).
(Signature of Officer)
(Print, type, or stamp commissioned name and affix official seal)
The Process without Self-proving Affidavit
Absent the self-proving acknowledgement, the authentication process typically requires the original witnesses to be located, evidence to be presented to a circuit judge, commissioner appointed by the court or clerk, and the court to be satisfied that the Will purports the actual wishes of the decedent.
If the witnesses cannot be located or are incapacitated, a Will may be admitted to probate upon the oath of the personal representative named in the Will or the oath of any other person with no interest in the estate stating that s/he believes the document to be the true last Will of the decedent. Therefore, self-proving Wills not only serve to speed up this authentication process but also to reduce total costs to the estate.
As it is imperative to ensure that any Florida Will is executed with the requisite statutory formality and contains a self-proving affidavit, consultation with a qualified attorney is recommended.
At ASR Law Firm, we are available to assist you with devising a comprehensive estate plan that will comply with Florida statutory requirements to ensure that your wishes are quickly executed.
If you would like to schedule a consultation to discuss implementing your estate plan or reviewing your existing plan to make sure it complies with Florida laws, contact us today.