For a will to be binding, there are a number of requirements that must be met. While state laws on wills vary, most require you to be of legal adult age to make a will and have testamentary capacity (i.e., that you be “of sound mind”). This is the same for a Florida will; however, a Florida will must also be witnessed by two adults of sound mind. Yahoo Finance’s recent article entitled “Who Can and Cannot Witness a Will?” explains that you usually must have your will witnessed.
Witnesses to your Florida will are significant in the event that someone disputes its validity later or if there is a will contest. If one of your heirs challenges the terms of your will, a witness may be asked by the probate court to attest that they watched you sign the will and that you appeared to be of sound mind when you did so. Witnesses provide you with another layer of validity to a will, and it makes it more difficult for someone to dispute its legality.
When drafting a will, it’s important to understand several requirements, including who can serve as a witness. Generally, but depending on applicable state law, anyone can witness a will, as long as they meet two requirements: (i) they are of legal adult age; and (ii) they do not have a direct interest in the will. Therefore, the types of people who could witness a will for you include your friends who aren’t to receive anything from your estate, a neighbor, co-workers and any of your relatives who aren’t included in your will.
The Florida Probate Code, at Section 732.504, entitled “Who May Witness,” sets forth that:
(1) Any person competent to be a witness may act as a witness to a Florida will.
(2) A Florida will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.
If you’ve hired an experienced estate planning attorney to help you draft your will, he or she can also act as a witness, provided they’re not named as a beneficiary. An attorney who’s also acting as the executor of the will (the person who oversees the process of distributing your assets and paying off any outstanding debts owed by your estate) can also witness a will.
Most states don’t allow you to select individuals who will benefit from your will as witnesses. If you are drafting a will that leaves assets to your spouse, children, siblings, or parents, then none of those individuals can serve as witnesses to the will’s signing because they all have an interest in the will’s terms. The same is true for relatives or spouses of any of the beneficiaries. This does not hold true for a Florida will.
The witnesses to your Florida will do not need to review the entire will document in order to sign it. They only need to be able to verify that the document exists, that you have signed it in their presence and that they have signed it in front of you.
When you sign the will, get both witnesses together at the same time. You’ll need to sign, initial and date the will in ink, then have your witnesses do the same. Some states require you to attach a self-proving affidavit or have the will notarized in front of the witnesses.
If you would like to discuss your options with an estate planning attorney in Jupiter, Palm Beach Gardens, or Naples, Florida, schedule a complimentary call with Edward J. Welch at Welch Law, PLLC.
Reference: Yahoo Finance (Dec. 28, 2020) “Who Can and Cannot Witness a Will?”