What Is a “Self-Proving” Will?
You probably know that in order for a last will and testament to be legal, it needs to be witnessed. Specifically, Florida law requires all valid wills to be signed in the presence of at least two witnesses. The witnesses can be any legally competent adult, including someone who is named as a beneficiary of the will.
After the testator–the person who made the will–dies, it may be necessary to locate the original witnesses to prove the validity of the will. In many cases this can prove difficult if not impossible. For instance, what happens if the witnesses have also passed away? Or what if the personal representative of the estate simply cannot locate the witnesses?
Notarizing the Signatures of the Testator and Witnesses
The simplest way to avoid such scenarios is to make the will “self-proving” at the time it is signed. A self-proving will is basically a will with a separate affidavit attached. The affidavit is a statement signed by the testator and the witnesses in the presence of a notary public, confirming that they all signed the document that is, in fact, the testator’s will.
As far as Florida law is concerned, the notarized affidavit makes the will self-proving. So when the testator passes away, the personal representative does not need to worry about locating the witnesses, assuming they are still alive. The affidavit is legally sufficient proof that the testator and the witnesses signed the will in the first place.
Again, it is important to note that the notary does not need to know the contents of the actual will. The notary’s function is simply to attest to the fact the testator and the witnesses are who they say they are, and that they signed the document in question.
Alternatives to a Self-Proving Will
So what happens if a will is not self-proving? The personal representative’s first step should be to try and locate at least one of the witnesses. The witness can then sign an oath before a Florida court, which is usually sufficient to prove the will’s validity.
If none of the witnesses can be found, however, then the court will still admit the will upon the oath of the personal representative or “any person having no interest in the estate under the will,” who can swear to their belief that the document is “the true last will of the decedent.”
Of course, if anyone chooses to contest the validity of the will, the absence of any witnesses or a self-proving affidavit can make things more challenging for everyone involved. This is why it is best to work with an experienced Fort Myers estate planning attorney in drafting a proper will that conforms to Florida law.
Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free consultation with a member of our estate planning team.