• Estate PlanningNecessity of a Florida Will

    It is quite possible that the Will of a current Florida resident was executed in another state. Therefore, the question arises as to whether such Will is valid under Florida Law.

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    Generally, a Will is valid in Florida if it was valid in the state in which it was executed, except for Wills handwritten by the Testator and not attested to by two (2) witnesses. However, there are overriding considerations for having a “Florida” Will.

    Witnesses to an out-of-state Will may be extremely difficult to locate following the Testator’s death.  It may also be inconvenient to have prior witnesses acknowledge or give testimony in order to “prove” the Will. As the Courts require that the Personal Representative or attorney perform a diligent search to locate a witness to the Will, this would involve additional expense in the Probate of the Testator’s Estate.

    Under Florida’s Probate Code, a Florida Will may now be executed before a Notary Public, who acknowledges that the Testator signed the Will before the two (2) witnesses, who themselves acknowledge the Testator’s signature and that the Testator was competent at the time of execution of the Will.

    If the Will is “self-proved,” that is, executed before a Notary Public with the foregoing requirements, the Will may be automatically admitted to Probate in Florida without the requirement of locating a witness to obtain his or her Oath as a witness to the Will. The law does not require the witnesses or Notary Public to be uninterested parties (those who do not stand to inherit from the Estate).

    The better practice is to have unrelated and uninterested parties act as witnesses and Notary to the execution of a Will. This will lessen the possibility of a Will contest by a disgruntled heir seeking to have the Will set aside.

    The Will should recite the person’s place of domicile at the time of execution.  Accordingly, if the Testator has recently become a resident of Florida, his or her Will can act as additional proof of his or her change of domicile. It is not uncommon to have two (2) states claim that a decedent was domiciled in both for tax purposes. This is especially true where an individual continues to return to his or her former state of domicile during the summer months or continues to own real property or other significant assets located in the other state. The recital as to domicile should refer only to the State of Florida.

    In Florida, the position formerly known as executor or executrix and administrator or administratrix, is now referred to as the Personal Representative of the Estate. Under Florida Law, the Personal Representative of the Estate must be either a Florida resident or related to the Testator to a certain degree.

    In addition, even though a Will may contain provisions waiving the furnishing of a bond to ensure the faithful performance of the duties of the Personal Representative, it is possible, especially if the Will was not executed in Florida, that the Probate Court will require the Personal Representative to post a surety bond. This can mean additional expense and inconvenience for the Personal Representative and delay the Probate proceeding.

    The terms of a Will can also be used to waive certain duties imposed on Personal Representatives under Florida Law.

    For example, the Testator may wish to waive the requirement of furnishing bond or the filing of periodic Accountings in the Estate or may wish to authorize the Personal Representative to sell real property without Court approval. Waiver of these requirements, if honored by the Probate Court, can save time and money in the Probate administration.

    Finally, there are circumstances which compel a review of an existing Estate Plan, including the making of a new Will or Codicil to an old Will. For example, a change of residence (e.g., from New York to Florida), change in financial resources, retirement, divorce or remarriage, and the birth of children or grandchildren are significant changes in circumstances. In light of the recent and continuing changes in the tax laws, including the Economic Growth and Tax Relief Reconciliation Act of 2001, almost every Will signed before 1986 should be reviewed and updated.

    A Will should be revised whenever a significant change in circumstances occurs so that it will conform to the person’s needs and desires.

    Codicil(s) A Codicil is a change to a Last Will and Testament.  It may only be made by a writing signed with the same formalities as the original Will.  Since 1976, all Wills and Codicils require execution before at least two (2) witnesses and a Notary Public to be self-proved.  No alterations of a Will should be made on the face of the Instrument.  To do so may jeopardize the validity and effectiveness of the entire Will and, perhaps, cause the Testator’s Estate to pass by intestacy (i.e., without a Will).  The assistance of a qualified attorney is recommended in this area.

    Oral Will(s) Oral Wills are not valid in Florida under any circumstances whatsoever.

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    If you or a loved one needs help with a situation involving one of these areas, please contact Thomas N. Silverman, P.A. at 561.775.7500 (24 hours) or info@FloridaProbateCounsel.com.

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