The Decedent's Last Will and Testament was not executed in Florida. Is that a problem?
The answer is it depends.
As long as the Last Will and Testament met the legal requirements in the state where it was executed, it most likely will be able to be used in Florida at the time of the testator's death. However, additional legal work may be required to get the Last Will and Testament admitted into a Florida Probate administration. The requirements for a Will to be properly executed (and the criteria for the Will to be admitted to a Probate Administration) are outlined in Fla. Statute 733.502.
In some jurisdictions, it is not common practice to execute the Last Will and Testament with a notarized statement by the testator and witnesses, but only have the testator sign in the presence of witnesses (no notary present). This document is called a self-proving affidavit. If the Last Will and Testament does not contain a self-proving affidavit, it may require additional research by the attorney to track down these witnesses to have them sign a sworn statement that they were physically present. In addition, the local court will have to appoint a notary in another jurisdiction as a commissioner to be able to take an affidavit from the witness. This process can be exceptionally difficult if the Last Will and Testament is more than 10 years old from the date of execution.
Another example where a Last Will and Testament cannot be admitted is a handwritten (or Holographic) Will being offered to probate. Some jurisdictions, such as Colorado, still allow for a handwritten will to be admitted for an Estate Administration. It would be almost impossible for this type of instrument to be admitted to a Florida Probate administration unless two independent witnesses also witnessed it, and the witnesses can give a sworn affidavit that they were present during the signing of the document, as well as other particulars around the circumstance of the signing. It is next to impossible to meet these requirements, but rarely it can be done.
Ask a Question
If you have a general question that you would like answered by a Florida Estate Planning and Administration Attorney, please use the contact form to send Shawn a question. As long as it is general (and not too specific to your unique situation), Shawn will answer these questions in the form of a Frequently Asked Question to help you but also help others in our community.
Shawn can not offer legal advice in this format. He can only provide general information that you may find helpful. You should call an attorney and seek legal advice if you need specific legal advice.
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Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.
