For those who are considering making a will in Florida, it is important to understand that there are some rules that one has to follow. Not only are there several types of wills, but you have to know which one applies to you. All wills in Florida have to be attested. But what is an attested will in Florida? This simply means that when the testator (maker of the will and to whom the will belongs) signs the will, it must be witnessed by two persons; otherwise, it is not considered valid. In addition, the signing process must be done in the presence of two witnesses that are mentally sound to be a Florida attested will. Attested wills are the most common type of wills in Florida. Every state has its own rules for creating an attested will and the same applies in Florida. For example, the signature can be either initialed or shown as the full name. If you think that the will may be contested, then it is a good idea to have it videotaped (in addition to the two witnesses) so that the state of mind and intent of the testator can be observed.
Florida Attested Will Requirements
- The will must be written and printed. An oral will — something you say to another person — is not accepted as a will in Florida.
- What is an attested will in Florida? A Florida attested will must be signed by the individual making the will (testator), or if he or she can’t sign, then another person can be appointed to sign the will in the presence of the testator. If for whatever reason the testator is unable to sign (e.g., due to a stroke, is unable to hold a pen, etc.), he or she may use a letter or a symbol instead. This is adequate if the testator can prove that he/she has used these symbols or letters previously as a signature. For example, some people may place an ink imprint of their thumb instead and this is considered valid in Florida.
- The will must be signed at the end of the document. It should also be dated.
- Florida law requires that the will must be signed in the presence of two witnesses. The witnesses must first observe the testator sign and then they should sign in the presence of each other.
- In Florida, anyone can be a witness when it comes to attesting to a will. This can be a family member, friend, business colleague, neighbor, child over the age of 14, or even a beneficiary named in the will. The key criteria are that the witness must be mentally sound and competent. In general, anyone over the age of 14 can be a witness.
- In Florida, there is no age requirement for the witnesses, other than to be older than 14. However, the individuals selected must be competent, mentally sound, be able to visually observe the testator sign, and have some understanding of the will and the signing process.
- In Florida, the will does not have to be notarized.
- Once you have created a will, you may wish to keep it with your lawyer, family member, friend, or business colleague. The original will has to be produced at the time of death; therefore, whoever you choose to keep your will must be reliable.
Can a Will be Challenged?
Yes, a will can be challenged for several reasons, including the following:
- Charges of fraud or forgery
- Defects in the execution of the will
- Suspicion that a will was made under duress
- Lack of testamentary intent or capacity
- Mistakes in the will
- Suspected undue influence
Contesting an Attested Will in Florida
In Florida, the statute of limitations to contest a will is three months from the date a copy is submitted to the administrator/
- When a will is contested, the onus to prove its validity rests with the presenter of the will.
- If the presenter can show that the will appears to be valid, the individual or party contesting a will has the burden of providing reasons why it should not be allowed to go into probate.
- If the will is contested on the grounds of undue influence, lack of testamentary capacity, or fraud, the party contesting the will has to only provide reasons why they think such has happened, and then, the burden of proof is passed on to the person presenting the will.
Wills are often contested when there is suspicion about the distribution of the estate and to whom. For example, your father may disinherit all the children and give everything to his new girlfriend, or your confused grandmother may leave everything to the caretaker instead of her own family. Such scenarios call for the will to be disputed but there are also valid reasons why the testator may have decided to change his or her beneficiaries. Perhaps your elderly father has a good reason for disinheriting his newlywed second wife, or perhaps the grandmother wanted her estate to go to her pets. In such circumstances, it is important to consult with an experienced estate lawyer. These professionals can evaluate the will, the circumstances under which it was created, and provide a defense if the will is being challenged.
Can I Revoke My Will?
There are times when you may want to revoke your will. For example, you may have a new grandchild whom you wish to name as a beneficiary, or you may want to delete the name of a beneficiary because they have fallen out of your good graces. The good news is that a will can be revoked in several ways. However, there are Florida rules that you need to follow. Ways in which you can revoke your will include the following:
- Writing it out that you have canceled or revoked your will. This needs to be dated and signed. Again, you still have to follow the same rules as making an original by having the codicil signed by two witnesses. The two witnesses do not have to be the same ones who signed the original will. Even though a codicil does not need to be notarized, this can help when it comes time for probate. If notarized, the two witnesses do not have to physically appear in court to state that they were present during the changes to the will, meaning that the document is SELF PROVING. And you must be very specific about how you state the cancellation of the will. There should not be any doubt in the court’s mind that you have definitely canceled the first will.
- You can physically destroy, burn, or shred the will. You can either tear up the will yourself or ask someone else to do it, but it has to be done in your presence, so you are sure that the mission has been accomplished. And, today, you can even record a video of the destruction of the will so that there can be no doubt that it has been destroyed. Or better still, you can do it in the presence of your lawyer.
Whatever reasons you may have for canceling your will, it is important to know the legal process. Just like there are certain rules to be followed when creating a will, there are also rules for altering or canceling a will.
What is an attested will in Florida? If you have decided to create a will, the best advice is to consult with an estate lawyer. The lawyer can help guide you through the Florida attested will creation process and ensure that it is devoid of any errors. At the end of the day, you want your estate to go to your chosen loved ones after your death. The professional and knowledgeable staff at Elder Law, P.A. is waiting to help you. Call them today at 1-561-933-5077 for a free consultation.