DEFECTIVE WILL SIGNINGS DISCOVERED AFTER DEATH OF TESTATOR
Abraham Lincoln said: “He who represents himself has a fool for a client.” When it comes to estate planning, more often than not, the foolishness of self-representation in the preparation of estate planning documents is not discovered until AFTER the self-represented person has died and can no longer fix his errors. The unfortunate result is that the decedent’s true intentions may not be carried out because he did not know the legal requirements necessary to effectuate his wishes. The most common error in the area of estate planning in Florida is someone personally writing their last will and testament with no one witnessing their signature. This is called a holographic will, and under Florida law, it is not enforceable, as every will in Florida must be in writing and signed in front of two witnesses. (See F.S. §732.502). Therefore, if you were to just handwrite your will with no witnesses acknowledging your signature, that will is a nullity, and your assets would pass according to the Florida Intestate Statute. This can result in a very different outcome than you may have desired. For example, let’s say you have three children, but one has not been a part of your life for a very long time, while the other two have been loving and supporting. As a result, you wish to leave everything to the two children whom you have a relationship with and disinherit the estranged child. Unfortunately, if your only will is a holographic will, upon your death, your assets would pass according to the intestate statute, which would leave all your assets equally to your three children, despite your stated intentions. At a minimum, a will must be executed in front of two witnesses to be valid. However, the best course of action is to have your will executed in front of two witnesses and a notary public, where the notary acknowledges your signature as well as the witnesses’ signatures. In this circumstance, your will is considered a “self-proving” will, and there is no need to track down the witnesses to supply
an affidavit that they witnessed your signing of the will to have it submitted to probate.
If a will is not self-proving, that leads to another common challenge in getting it submitted to probate: finding the witnesses. In order to have a will submitted without notary acknowledgment, you need to submit an affidavit of at least one of the signing witnesses. If the will was signed more than 20 years ago, good luck finding the witnesses, assuming you can read their signatures if their names weren’t printed beneath (which is often the case). However, all is not lost. The Florida probate laws provide in the relevant part: “If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will …” (See F.S. §733.201). Of course, if the personal representative was involved in the creation of the will, and there are unhappy siblings left empty-handed, you can bet on a contested will. Also, the personal representative must attest to the signature before a judge or the clerk of court, so out-of-state reps will need to travel to Florida for the attestation. The foregoing examples are only two of the ways that ignorance of the law can have a detrimental effect on carrying out your intentions. Whether it’s a leaking pipe, medical issue, or estate planning, the best course of action is always to use a professional who works daily in those areas. When it comes to estate planning, you don’t want an incorrect signing of your will to defeat the transfer of your hard-earned assets to the people or charities you intended to benefit from your life’s work. –Mark Martella, Esq.
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