To properly execute a paper will in Florida, the testator must sign at the end of the will, or direct another person to sign for them in their presence. The testator’s signing or acknowledgment must occur in the presence of at least two witnesses, and those witnesses must sign in the presence of the testator and each other. Florida also permits electronic wills under separate statutory requirements.
The rules may sound straightforward. The details matter.
A will can contain exactly what someone intended to leave to their family and still create a problem if the document was not executed according to Florida law. That is why signing a will deserves more attention than simply putting a signature on the last page.
What Are the Requirements for Executing a Will in Florida?
Florida Statute §732.502 establishes the formal requirements for executing a will.
For a traditional paper will:
- The will must be in writing.
- The testator must sign at the end of the will, or direct another person to sign the testator’s name in the testator’s presence.
- The testator must sign or acknowledge the will in the presence of at least two attesting witnesses.
- The witnesses must sign the will in the presence of the testator and in the presence of each other.
Florida law does not require a particular set of magic words for a will to be valid. The required formalities are what matter.
Codicils, which modify an existing will, generally must be executed with the same formalities as a will.
That last point is easy to overlook. Adding a handwritten instruction to an existing estate-planning document does not automatically turn the instruction into a valid codicil.
How Many Witnesses Are Required for a Florida Will?
A Florida paper will requires at least two attesting witnesses.
The witnesses do not merely sign a document that the testator hands them.
Florida law requires the testator’s signing or acknowledgment to occur in their presence. The witnesses then sign in the presence of both the testator and each other.
The order of events can therefore matter.
A proper execution ceremony gives everyone a clear understanding that the document being signed is the testator’s will and that the required witnesses are participating in its execution.
This is one reason formal will execution is usually handled as a deliberate process rather than as an administrative afterthought.
Does a Florida Will Have to Be Notarized?
No. A notary is not a substitute for the two witnesses required to execute a traditional Florida will.
Notarization enters the picture in a different way when a will is made self proved.
Under Florida Statute §732.503, a will that has been properly executed can be made self proved through the testator’s acknowledgment and the affidavits of the witnesses before an officer authorized to administer oaths.
The self proving affidavit is therefore connected to the proof of the will. It does not replace the basic execution requirements.
That distinction is important because people sometimes assume that a notarized will is automatically valid.
A notary stamp cannot repair an execution process that failed to comply with the statutory requirements.
What Is a Self Proving Affidavit?
A self proving affidavit is a sworn statement associated with a properly executed will.
The testator acknowledges the will, and the witnesses swear to the circumstances of its execution before an authorized officer. When the statutory requirements are satisfied, the will can be admitted to probate without further proof of execution.
Florida law also provides that a self proving affidavit can establish prima facie formal execution and attestation in a will contest.
In practical terms, that can make the later probate process easier because the estate does not necessarily have to locate a witness years later simply to establish how the will was signed.
A self proving affidavit does not make an improperly executed will valid.
The underlying will still needs to satisfy the applicable execution requirements.
Can a Handwritten Will Be Valid in Florida?
This is one of the areas where Florida law can surprise people.
Florida does not generally allow a person to bypass its execution requirements merely because the person wrote the will by hand.
A document written entirely in the testator’s handwriting is commonly called a holographic will. Florida’s statute specifically excludes holographic and nuncupative wills from the ordinary out of state validity provision, while requiring wills executed in Florida to comply with the state’s formal requirements.
Writing “This is my will” on a sheet of paper and signing it is therefore not a reliable substitute for a properly executed Florida will.
There are situations involving wills executed under another state’s law, military testamentary instruments, and other special circumstances, so an individual document should be evaluated under the law applicable to it.
Can a Will Be Signed Electronically in Florida?
Yes.
Florida has a statutory framework for electronic wills. An electronic will uses an electronic signature and must be executed according to the requirements established in Part V of Chapter 732.
Florida law also permits the required presence of individuals to be satisfied through qualifying audio video communication technology in circumstances involving online notarization and the statutory requirements for electronic execution.
Electronic wills have additional requirements that do not apply in exactly the same way to an ordinary paper will.
For example, Florida law addresses qualified custodians and establishes requirements concerning the custody of an electronic will before it is offered for probate.
An electronic will should therefore not be treated as a PDF version of a paper will. It is a separate legal framework with its own execution and custody requirements.
Can a Beneficiary Witness a Will in Florida?
Florida law specifically addresses who may serve as a witness.
Florida Statute §732.504 provides that a person who is an interested witness is not disqualified from witnessing a will merely because the person has an interest under the will.
That does not mean that choosing beneficiaries as witnesses is necessarily the best practical approach.
When witnesses are available who have no personal interest in the estate, using disinterested witnesses can avoid unnecessary questions later about the circumstances surrounding the execution.
The important point is that the witness question should be considered deliberately rather than handled by asking whichever two people happen to be standing nearby.
What Happens If a Will Was Not Properly Executed?
An execution problem can become important when the will is presented for probate.
Florida law places the initial burden on the person offering a will to establish prima facie formal execution and attestation in a will contest. A self proving affidavit executed under the statute can establish that prima facie showing.
If the formal execution of the document is challenged, the circumstances surrounding the signing may therefore become part of the probate dispute.
That does not mean every mistake produces the same legal result.
A document signed in another state may be governed by rules concerning the validity of out of state wills. Military testamentary instruments have separate statutory treatment. Electronic wills are governed by their own provisions.
The circumstances surrounding the document matter.
Is an Out of State Will Valid in Florida?
Often, yes.
Florida Statute §732.502 provides that a will executed by a nonresident can be valid in Florida if it was valid under the laws of the state or country where it was executed, subject to the statutory limitations.
This can matter frequently in Florida estate planning.
Someone may have created a will in New York, New Jersey, Illinois, or another state before moving to Coral Springs. The fact that the person now lives in Florida does not automatically mean the old will is worthless.
It does mean the document deserves review.
The same applies when someone has moved between countries or has estate documents prepared under another jurisdiction’s laws.
A Florida estate-planning review can determine whether an existing will works with the person’s current circumstances and Florida law.
What If I Need to Change My Will?
Changing a will requires care.
Florida law provides several methods for revoking or modifying testamentary documents, and a codicil must be executed with the same formalities as a will.
That makes informal changes risky.
Writing a new instruction in the margin, crossing out a provision, attaching a note, or creating a separate document does not necessarily accomplish what the person intends.
If the goal is to change the estate plan, the safer approach is to use a legally recognized method of modification or replacement and execute the resulting document properly.
There is a reason lawyers tend to be suspicious of the sentence, “I just made a few changes to the old will.”
What Should You Do When Signing a Will?
The execution ceremony should be treated as part of the legal document, not as a routine signing appointment.
Before signing, make sure the document being executed is the final version.
The people participating should understand their roles.
The testator should follow the signing and acknowledgment procedure required by the applicable law. The witnesses should sign as witnesses and follow the required presence rules. If a self proving affidavit is being executed, that process should be completed at the same time when appropriate.
The original should then be stored somewhere it can actually be found.
A beautifully drafted will hidden in an unknown filing cabinet is not a particularly useful estate-planning document.
What Can Go Wrong With Poor Will Execution?
Several problems can complicate probate:
- A required witness did not actually witness the testator’s signing or acknowledgment.
- The witnesses did not sign in the required presence of the testator and each other.
- Someone made handwritten changes without properly executing a new document or codicil.
- The family cannot determine which version is the final will.
- An electronic will was not created or maintained according to the statutory requirements.
- A will prepared in another state has not been reviewed after the testator moved to Florida.
- The original document cannot be located.
- A later dispute raises questions about the circumstances surrounding execution.
Some of these problems can be addressed through evidence or other legal procedures. Others can produce genuine probate litigation.
The simplest time to discover an execution problem is while the person who made the will is still alive and able to correct it.
Does a Lawyer Have to Execute My Will?
No. Florida law does not require every will to be prepared or executed by an attorney.
A person can prepare their own estate-planning documents.
The legal requirements do not become optional because the document was prepared without a lawyer, however. A do-it-yourself will still has to comply with the applicable rules if it is going to function as intended.
Legal review can also identify issues that have nothing to do with the signature ceremony itself, including conflicts between an old will and newer estate-planning documents, beneficiary designations, trusts, business interests, or property ownership.
Execution is one part of estate planning.
It is an important part, but it is not the entire plan.
Proper Will Execution in Coral Springs and Broward County
For residents of Coral Springs and Broward County, will execution questions often arise when an older will is being updated, when someone has moved to Florida from another state, or when family circumstances have changed since the original document was signed.
The signing process should account for the applicable Florida requirements and for the rest of the person’s estate plan.
Reinfeld & Cabrera P.A. assists clients in Coral Springs, Broward County, and throughout South Florida with wills, trusts, probate, and related estate-planning matters.
Frequently Asked Questions
How many witnesses are required for a will in Florida?
- A traditional Florida paper will generally requires at least two attesting witnesses. The testator must sign or acknowledge the will in their presence, and the witnesses must sign in the presence of the testator and each other.
Does a Florida will need to be notarized?
- No. A notary does not replace the two required witnesses. A properly executed will can be made self proved through the statutory affidavit process.
Is a handwritten will valid in Florida?
- A handwritten will does not generally avoid Florida’s execution requirements merely because it was written by the testator. The circumstances under which the document was executed matter.
What is a self proving affidavit?
- It is a sworn statement by the testator and witnesses that satisfies Florida’s statutory requirements for making a properly executed will self proved. A self proved will can generally be admitted to probate without additional proof of execution.
Can a beneficiary witness a will in Florida?
- Florida law does not automatically disqualify an interested person from serving as a witness. Even so, selecting appropriate witnesses should be handled carefully.
Can I make an electronic will in Florida?
- Yes. Florida recognizes electronic wills under a separate statutory framework that includes requirements concerning electronic signatures, witnesses, notarization, and, for self proof, qualified custody.
Is an out of state will valid in Florida?
- A will executed outside Florida can be valid in Florida when it satisfies the applicable requirements of the state or country where it was executed, subject to Florida’s statutory rules.
Do I need a lawyer to execute a will?
- Florida law does not require an attorney to be present for every will execution. A lawyer can nevertheless review the document and execution process and identify issues that could affect its validity or its interaction with the rest of an estate plan.
This article provides general information about Florida law and is not a substitute for legal advice concerning a particular estate or will.