Florida’s Complicated Process to Write and Execute a Will

Florida’s Complicated Process to Write and Execute a Will

| May 1, 2018 | Firm News |

Most people know that they should have a will or some other succession plan.  But some people, mistakenly, try to make a will without any help.  In Florida, making a do-it-yourself (DIY) will can be very dangerous.  This is because, under Florida law, it is very complicated to create a valid will.

Specifically, to execute a will, Florida Statutes Section 732.502, requires that the testator (that’s the person who is making the will) sign the will at the end of the document and in the presence of two witnesses.  Those two witnesses must also sign the will.  Florida law, however, further complicates things.  In Florida, the law not only requires that the testator sign the will in the presence of two witnesses, but also that the two witnesses be in the “presence” of one another.  When this was not done, the probate court, in a case called Price v. Abate, declared a will to be invalid.  This means all three people must be in the same room, at the same time, and must all watch one another sign the document.

Such strict legal formality is what often creates problems with DIY wills.  To make matters worse, not every state requires such strict formality.  Some people may try to copy another will from a family member or friend who lives out of state.  Other people may try to get a will online, not knowing that the will does not comply with Florida’s strict laws.  In either case, the will may be declared invalid by a probate court.  Of course, no one knows that the will is invalid until after the would-be-testator passes away; by then it is too late to fix the problem.

Even if a will is valid, and, during the testator’s lifetime, he or she tries to change the will without help, problems can arise.  It is not so easy to change a will as to simply draw a line through the sentences the testator wants to remove.  It, like making and executing a will, requires many legal formalities, and if not changed properly, by subsequent codicil meeting the legal formalities, the Florida probate courts will declare the change invalid.

Whenever a person makes a will or attempts to change a will by codicil in the state of Florida, that person must be extremely careful to comply with the strict Florida law.  If the person does not comply with the law, the probate court may declare that the will is invalid, and the testator’s possessions may be distributed in a manner contrary to the desires of the testator.  This may cause problems and feuds among the family and friends who thought that they would be left certain gifts.  Attention to detail and attention to legal formality is extremely important whenever drafting or executing testamentary instruments in Florida.

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