Signed But Not Valid: Why Proper Document Execution Matters in Florida

An Introduction to Properly Executing a Legal Document

One of the most unfortunate legal oversights is failing to properly execute a legal document after it has been drafted. Many Floridians mistakenly believe that once they sign a legal document, it automatically becomes valid and can be enforced accordingly. However, this misunderstanding regularly leads to costly problems such as delayed real estate closings, void transfers of real estate, rejected powers of attorney by third parties and, most problematic, probate disputes.

The proper execution of documents, including notarization and witness requirements, is crucial to a smooth legal process in Florida. Whether one is preparing an estate plan, transferring real estate, or engaging in business contracts, the parties need to ensure they are executed with the required formalities under Florida law to avoid costly and avoidable legal mistakes.

Why does Proper Notarization and Execution of Documents Matter in Florida?

In Florida, legal documents are at the foundation of estate planning and transfers, property ownership and business agreements. And in many cases, Florida law requires more than mere signatures to effectuate the documents and ensure that they provide the level of protection sought by the parties involved. In certain circumstances, failure to properly notarize and witness a party’s signature may lead to unexpected rejection of the document, delay or litigation.

The following provides a cursory outline of the witness and notary requirements for some of the most commonly drafted documents in Florida:

Statutory references: Fla. Stat. §§ 732.502, 736.0403, 709.2105, 765.202, 689.01

The Importance of Properly Notarizing and Witnessing Estate Planning Documents

A well-drafted estate plan may be made in vain if it is not executed correctly in compliance with Florida laws. Florida courts strictly adhere to the statutory requirements for execution when administering estate planning documents. For example:

Last Will and Testament – this document must be signed at the end of the document by the testator (person creating the Will – Florida Statute §732) in the presence of two witnesses (preferably not beneficiaries). A Will not signed in the presence of two witnesses is invalid in the state of Florida, thereby causing an estate to be administered under intestacy laws. Although not required to make the document effective, a Will may be made self-proving via notarization and a specific affidavit. This allows a court to accept the document without the witnesses’ testimony during a probate case.

Revocable Living Trust – While a revocable living trust does not necessarily require  notarization to be considered valid, any testamentary aspect of the trust must be executed with the same formality as a Will. Therefore, it is best for it to be both witnessed and notarized. Furthermore, funding documents such as deeds and assignments regularly require both notarization and witnesses to be considered valid.

Durable Power of Attorney–Third parties, such as banks and financial institutions, often reject powers of attorney documents due to improper execution. In Florida, a power of attorney requires the signature of the principal (person creating the document) signed in the presence of two witnesses and a notary. Failure to properly execute a power of attorney may result in the need to seek a court-appointed guardianship to manage the finances of a disabled principal.

Real Estate Transfer Notary Requirements

An improperly executed transfer deed may create title defects and problems that may not be discovered until years later, sometimes after the grantor/transferor is deceased, during a future sale, refinance or inheritance.

Transfer Deeds

In Florida, transfer deeds must be recorded to provide protection against third parties such as future purchasers or creditors. For a deed to be valid for recording in Florida, it must be signed by the grantor in the presence of two witnesses and acknowledged by a notary.

Consequences of not having a properly executed deed may span from delays at a real estate closing, to more serious problems such as unintentionally ending up in probate court, denial of title insurance or even legal challenges to the subject transfer. For this reason, it is particularly important that transfer deeds drafted for estate planning purposes, such as the enhanced life estate (lady bird) deeds, are executed accurately.

How Notarization Can Strengthen Enforceability of Business Contracts

In Florida, most business contracts do not require notarization.

However, it is recommended that documents in which enforceability may be challenged, such as operating agreements, assignments of ownership interests, partnership agreements, buy-sell agreements etc., are notarized.

Having business contracts notarized reduces the risk of forgery, lack of consent or illegality.

Who can be a Witness in Florida

According to Florida law, witnesses must be a competent adult of sound mind who are present (whether physically or virtually) during the signing and able to observe the signing directly.

It is important to remember that health care directives (health care surrogate and living will) and powers of attorney, the witness should not be a spouse, child, heir or beneficiary; in other words, at least one of the witnesses must be disinterested, but it is best that both are! Having disinterested witnesses reduces the risk of a challenge to the document in the future.

Common Consequences of Improper Execution

Improper notarization or witness errors may result in various negative consequences that can be detrimental to an estate or ownership rights. Some of the most common consequences are:

• Title defects or rejected deeds
• Inaccessible bank accounts due to an invalid power of attorney
• Probate cases that would have been otherwise avoidable
• Litigation amongst family members
• Significant delays in estate administration

Many of these problems arise years in the future, when it is far too late to fix the incorrect execution of the subject document.

Checklist when Executing Florida Legal Documents

Before signing any legal document, confirm:

(1) For Estate Planning Documents

• Two adult witnesses present simultaneously
• Notary for self-proving will & durable POA
• One disinterested witness for health care directives
• Originals stored securely and digitally scanned

(2) For Real Estate Deeds

• Proper legal description included
• Two witnesses + notary present
• Formatting meets recording requirements
• Deed recorded promptly to perfect transfer

(3) For Business Contracts

• All owners or authorized signers identified
• Consider notarizing for enforceability
• Keep minutes/resolutions for major decisions
• Store copies in business records book

Frequently Asked Questions

Conclusion: Protecting Your Family, Real Estate & Business Starts With Proper Execution

Legal documents are usually the culmination of years of hard work, planning and investment. Having them fail due to improper execution would be disastrous at best. Making sure all required signatures are properly affixed along with the notary and witness formalities ensures that loved ones, beneficiaries and businesses are protected as intended.

Consulting with and following the direction of a legal advisor can prevent unintended consequences or years of court involvement.

If you have previously signed documents, inherited property, own investment real estate, or operate a business, it may be time to confirm whether everything is properly executed and enforceable under Florida law.

To learn more about how we may be able to assist with the preparation and execution of your estate planning, real estate and business agreement documents, contact us to schedule a consultation.