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Where there is a will, there is not always a way

February 14, 2019

 

 

Most people have heard of a Will, sometimes referred to as a Last Will and Testament, and many of us probably have one but do you know if yours will be enforceable when you die? Preparing a Will legally is a fairly simple task and it could technically be done on a bar napkin or a random sheet of paper. Even if a Will is drafted correctly, it must also be signed correctly.

 

The goal of a Will is to let the world (through the court system and a Judge) know how you wanted your property distributed when you die. Unfortunately sometimes simply having a Will is not enough for a Judge to grant your wishes. A Will must be admitted to probate for the Judge to be authorized to enforce its terms. It must be properly executed in order to be admitted to probate, which is where trouble often arises.

 

There are very strict requirements for how a Will should be signed in order to be enforceable. It must be signed by the Testator/Testatrix - the person making the Will, either male or female, respectively - in front of two disinterested witnesses. The reasoning behind these strict requirements is to provide the court with a standardized way of confirming that a document is, in fact, what the decedent intended to be his or her Will. If there weren't any witnesses and you are now deceased, there is no one left to tell the court which document is correct.

 

One common pitfall is that the witnesses must be disinterested in the Will. This means that the witnesses cannot inherit any property from the Testator. The goal of this requirement is to reduce the risk of fraud. Sometimes there are two Wills presented to the court as the Last Will and Testament of the decedent. In order to determine which one expresses the decedent's final intent the court will need to consider factors such as which was executed later in time, and if there is a question of validity of the documents, the judge will want to take the testimony of the witnesses to determine which one is the true Will. Without witnesses, there would be no one available to testify as to the validity of a document, since the drafter is deceased. 

 

Another pitfall is improper execution. This can be as simple as the witnesses failing to print their names under their signatures or only having one witness. It is important for the witness to be identified in case they need to be called to testify as to the Will's authenticity. Having only one witness can make it as if the Will doesn't exist legally, which may result in property going to family members that the Testator didn't want inheriting his/her property, or if no family survives the Testator, the property could be distributed to the State.

 

A third issue is with what is known as a Self-Proving Affidavit, which isn't required but is recommended. In order to avoid having witnesses come in to court to testify about the Will signing, the State of Florida recognizes and admits Wills which are accompanied by a Self-Proving Affidavit. This is an additional page that is attached to the Will and includes a statement that the Witnesses and the Testator swear under oath that they signed and witnessed the Will and that it is the Testator's intent that this be his/her Will, then the form is Notarized. This affidavit essentially replaces in-person testimony so that the Judge can be confident that this document is the Will of the Testator. 

 

While it is common for people to want to save money, when it comes to estate planning documents, it is imperative that they be done right. Spending a little bit now can save your heirs a lot of headaches, fighting, and money after you die.

 

Contact Wallace Law, P.A. at (561) 623-5302 to discuss your estate plan.

 

 

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