Let’s first dispel the common misconception that if your late loved one has a last will and testament, you do not have to go through probate. There are cases when probate is not necessary, but having a last will and testament is not one of those cases. Rather, the last will facilitates the probate process. It details the wishes of the deceased, stating who gets what. Florida Statute 732.501 allows any person who is of sound mind and who is either 18 or more years of age or an emancipated minor, to make a will.

Florida Statute 732.502 requires that a will must be in writing. Therefore, an oral will, referred to as a nuncupative or deathbed will, is not valid. However, a handwritten, or holographic will is valid, so long as it is executed in conformity with Florida Statute 732.502. An out-of-state handwritten may also be valid, so long as it was executed in conformity with the laws of the state in which it was signed.

For a last will and testament to be admitted to probate, it must be validly executed. So, what constitutes a validly executed Florida last will and testament? Florida Statute 732.502 requires the person signing the last will and testament, known as the testator, to sign it at the end or the testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and at the testator’s direction. The testator must sign the will in the presence of two attesting witnesses, who must also sign the last will and testament, attesting that they witnessed the testator sign it before they signed it. The testator and the witnesses must all sign the last will and testament in the presence of each other. That is, it. You may notice that no notary is required. However, without a notary’s signature, the process of admitting the last will and testament to probate becomes a little more complicated.

Florida Statute 732.503 allows a last will and testament to be self-proved. Following the signatures of the testator and two witnesses, a last will and testament could (and should) include a self-proving affidavit. A self-proving affidavit, which is signed by the testator and the same two witnesses, declare to a notary public that the testator declared the instrument to be his or her last will and testament, he or she signed it in the presence of the two witnesses, and that two witnesses signed the instrument as witnesses in the presence of the testator and of each other. Thereafter, the notary public acknowledges that the testator and two witnesses signed the self-proving affidavit in the notary’s presence. If a will is merely signed by a notary without complying with these requirements, the will is not considered self-proven.

So why should a last will and testament be self-proven? Because if it is not, prior to its admission to probate, it will be necessary to locate on of the two attesting witnesses, who will then be required to sign an oath as a witness to the last will and testament in the presence of clerk of the court. This can create a problem if a witness cannot be located or if it creates a hardship for the witness, to appear before the clerk.

If you have any questions about your late loved one’s last will and testament, we can answer all those questions. Having drafted hundreds of wills and probating hundreds of wills, we can put our experience to work for you.