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Notary Issues That Could Lead to Will Contests and Other Unwanted Complications

Notary and PaperworkFlorida law does not require that a last will and testament be notarized. However, a notary stamp is necessary to establish that  a will is “self-proving.” If a will is not self-proving, the court will require that one of the witnesses who signed the will testify to the document’s validity, affording opportunists the chance to initiate an estate contest.

Florida’s Requirements for a Valid Will

The Sunshine State presumes that most adults have the mental capacity to write a will and make other critical estate planning decisions. Nevertheless, the person creating the will—called the testator—must meet certain legal requirements. A will is only valid in Florida if:

  • The will is in writing;
  • The testator must be of sound mind, meaning that they know they are writing a will, are capable of understanding their relationship to their heirs, and can comprehend their will's effects with respect to their property;
  • The will is signed by the testator in the presence of at least two witnesses; and
  • The will is not a product of fraud, duress, mistake, or undue influence.

Irrespective of whether a will has been typed or handwritten, it is only valid if it is accompanied by the signatures of at least two witnesses.

Self-Proving Wills in Florida

If a Florida resident passes away with an asset in their own, individual name (not jointly held, no listed pay-on-death or transfer-on-death beneficiaries), then their estate could be subject to probate if it is not protected by a trust or other estate planning strategy. When the estate’s executor, known as the "personal representative" in Florida, submits the initial petition to initiate probate, they must furnish the deceased person’s will, if any will exists.

If the deceased person created a will, then the personal representative must validate it through the initial submissions with the probate court. Although the court recognizes as valid a will signed only by the testator and two witnesses, the court will require you to undertake an additional step if the will is not a"self-proving". 

A self-proving will is a will that is usually accompanied by an affidavit. The affidavit is only valid if it:

  • Includes specific language required by state law.
  • Is signed by the testator and at least two witnesses under oath and in the presence of a notary public.
  • Is stamped by the notary public.

If an affidavit meets these requirements, then the will could be considered self-proving and should not require witness testimony or other authentication in court.

If the will is not self-proving, it must be proved before the court. This requires that one of the signing witnesses to the will appear before the court whereby they must attest to the will's authenticity. Under most circumstances, the witness must appear in person—potentially delaying probate proceedings. As such, many testators create self-proving wills that do not require any additional steps to authenticate. 

Notarized Self-Proving Will Affidavits

Since the State of Florida specifies what language must be included in a will or an affidavit to make the last will and testament self-proving, creating a self-proving will is typically only a matter of finding two willing witnesses and visiting a notary public. However, problems could arise if:

  • The notary is not authorized by the State of Florida. During the COVID-19 pandemic, many businesses—including notaries—either moved online or increased their digital presence. However, not all notaries are permitted to approve transactions online. If a will or affidavit has been affirmed by a notary that is not recognized by the State, then the court could find the document invalid. 
  • The will does not include the requisite language. A self-proving will or affidavit must include specific language to be considered valid. Without the requisite language, the court may ask the witnesses to authenticate the will.
  • The will or affidavit are misplaced. If either document is misplaced, the probate court could force the estate into intestate proceedings. These proceedings are typically intended to dissolve the estate of a person who died without a will or any other estate planning preparations. Since intestate proceedings follow a strict legal formula to determine how the decedent’s assets should be distributed, the deceased person’s named beneficiaries may lose all or a portion of their inheritance.

If a will or affidavit is lost or does not meet the state’s requirements, then it could require additional authentication in court—providing an opportunity for creditors, disinherited heirs, and other interested parties to file a will contest. All of this could jeopardize the successful dissolution of the estate.

Contact a Florida Probate Litigation Attorney Today

If you or a loved one have concerns about the validity of a self-proven will or affidavit to a will, please send DeLoach, Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to schedule your free, no-obligation consultation today.

 

Michael D. Cavonis
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Probate and Estate Litigation Attorney