In order to be a valid will under Florida law, a will must conform with the execution requirements set forth in the Florida Probate Code. Pursuant to Section 732.502 of the Florida Probate Code, a will must be in writing and must be signed by the testator at the end of the document. If the testator is unable to sign the document, some other person may subscribe the testator’s name at the end of the document in the testator’s presence and by the testator’s direction.
Further, the testator’s execution of the will must be witnessed by at least two attesting witnesses who also must sign the will in the presence of the testator and in the presence of each other. A will may satisfy the execution requirements of the Florida Probate Code if the witnesses are not present for the testator’s execution of the will, but are present for the testator’s acknowledgement that he or she has previously signed the will or that another person has subscribed the testator’s name to the will at the testator’s direction. Nevertheless, the witnesses must always sign the will in the presence of the testator and in the presence of each other.
While not required, it is recommended that every will be “self-proved” in order to avoid unnecessary difficulties in admitting the will for probate upon the death of the testator. A will is self-proved if it contains a notarized affidavit containing the signatures of the testator and the witnesses, in which all parties swear that the document is the testator’s last will and testament and that the will otherwise complies with the execution requirements of the Florida Probate Code. The specific language recommended for use in the self-proving affidavit is contained in Section 732.503 of the Florida Probate Code.
Self-proved wills are admitted to probate without further proof. Wills that are not self-proved may be admitted to probate only upon the oath of one of the attesting witnesses, who must appear before the circuit judge or clerk of courts. This requirement may be extremely difficult to fulfill where the witnesses to the will no longer reside in the county where the will is to be admitted or worse where the witnesses to the will are no longer alive. The Florida Probate Code provides a safeguard in such situations, allowing admission of the will upon the oath of the personal representative nominated by the will, or the oath of some other disinterested person, that the writing exhibited is believed to be the true last will of the Decedent.
