The most famous of all the estate planning documents for Floridians (and in other states) is the Florida last will and testament. This simple document concerns a deceased loved one’s last wishes. It involves a life legacy for many and can pass a fortune.
For all these reasons, and more, this simple document generates a lot of emotions for loved ones. The Florida last will and testament can also create a great amount of heartache if not executed properly. This articles explains in painstaking detail how to make sure your Florida last will and testament is properly prepared, signed, witnessed and notarized.
The Formalities of a Florida Last Will and Testament
A properly executed Florida last will and testament will have 3 parts, which are:
- Body
- Signing
- Attestation
The formalities for our purposes concern the signing and attestation sections of the Florida last will and testament. We’re starting with the formalities because this is arguably the most important component of this document.
Why? you may ask…
Because a beautifully drafted Florida last will and testament without the formalities having been observed will be disallowed by the probate judge. In other words, it may not be worth the fine cotton paper that it’s printed on.
Depending upon your state of residence, the formalities for signing and attesting the last will may vary. What is fairly consistent is that generally 2 witnesses and a registered notary public are required. You’ll need to check your state laws to determine if the notary can and should serve as one of the witnesses.
A few states such as Florida require a formal approach in which all witnesses and the notary are in the same room, and the testator must observe the witnesses sign in the same room.
Other states follow a less formal approach, which is the modern trend called the “conscious presence test.” With this approach, the witnesses may sign outside the room if the testator is simply conscious of their presence while they sign the will.
There is also a “line of sight” test, which is slightly more stringent than the conscious presence test because the witnesses must sign the will in the testator’s line of sight.
So it is very important to understand your state’s statute of wills and the requirements for the signing and attestation of the last will. Many states now require that a last will either must or should be notarized, and this notary section is called a “self-proving affidavit.”
The self-proving affidavit will allow the Florida last will and testament to be admitted to the Florida probate court without having to locate the witnesses, and this is important because the last will may be around for a long time and witnesses tend to disappear.
Key Provisions in a Florida Last Will and Testament
There are certain key provisions of a Florida last will and testament which are typically found in the body of the last will itself. The document itself may “theoretically” include any provisions that the testator desires provided they are clear and pertain to the distribution of assets in order to be relevant.
For our purposes, key provisions are those that would cause the last will to be incomplete and perhaps flawed if they were omitted.
A summary of key provisions is as follows:
- Identification of the testator
- Identification of document as the last will and testament
- Appointment of the executor
- Distribution of personal property
- Bequests – defined as special or general
- Payment of estate expenses
- Distribution of residuary estate
Both 1 and 2 above, identification of the testator in Florida and Identification of document, are illustrated in the example above wherein Elvis is identifying himself as a citizen of Shelby County, TE, and the maker of his last will and testament.
In #3 the appointment of executor or personal representative in Florida is where the testator is appointing the individual to be responsible for “administering” the estate upon the testator’s death. The executor is responsible for the “business” side of administering the estate and, depending upon the estate and state laws (i.e. does Florida law apply?), they may need to hire a probate attorney in Florida to handle the probate administration.
Some states require that only attorneys can file probates while others allow limited exceptions to the rule in simple estate cases. An executor is responsible to the estate beneficiaries (heirs) and may be an heir also. A section in the Florida last will and testament for the distribution of personal property is also important, and many last wills simply state that the personal property may be distributed per a separate written memorandum.
Actual distributions of personal property may also be made directly in the last will using language like, “To Tommy, I give my authentic civil war era saber.”
Bequests (General or Special) are any distribution of property in the last will and may be either specific or general bequests depending upon the intent of the testator. If a gift is unique and the testator does not intend to give the value of the gift in the event that the gift disappeared, then a specific bequest would be used. In other words, if I were giving my 1969 Ferrari to my cousin Phil, as a specific bequest, and the car is not in my estate at death, the gift would be extinguished or “adeemed”. However, if that gift were a general bequest, the estate would be obligated to pay Phil the approximate value of the Ferrari from the remaining estate assets. Okay, I don’t have a 1969 Ferrari…
The payment of estate expenses is somewhat self-explanatory and concerns the creditors of the deceased testator (decedent). Generally, when a will is admitted to probate in Florida, notice will be published in the local paper and will also be sent to all known creditors, and they have 90 days to file a claim against the estate. Where there are adequate assets, creditor claims may be paid from the estate.
The residuary estate in Florida is whatever is left over in the estate after all specific bequests, general bequests and personal property distributions, and all other debts have been paid out by the estate. A will should always designate who is to receive the residuary of the estate in some fashion whether that is “to my heirs in equal shares per stirpes” or “to my two children, Tommy, and June.”
Another important point about the Florida last will and testament is that the state law of Florida will dictate how assets are distributed to a beneficiary or among a number of beneficiaries if the will doesn’t do so. This is where terms like “per stirpes” and “per capita” or “per capita with representation” become important. These rules are simply ways to divide the estate if there are groups of children, grandchildren and perhaps great-grandchildren.
In Florida per stirpes is the most traditional approach and essentially creates 1 share for each class of beneficiaries (children being one class, grandchildren being a second class and so on down the line).
Under a strict per stirpes approach, if Zeb dies unmarried with 3 children, Zach, Zena and Zoe, each child would receive a 1/3 share, and if Zoe predeceased Zeb and left 2 children (Zeb’s grandchildren), they would receive Zoe’s 1/3 share to divide equally.
Applying a per capita approach, Zach and Zena would each take an equal share in the estate and Zoe’s children would be cut out of the estate because only the highest class shares in the estate. Applying a per capita with representation approach would yield a similar result and allow Zoe’s children to share Zoe’s 1/3 share equally.
Where it gets more complicated is if all 3 of Zeb’s children were to predecease him, and let’s say Zach has 1 child, and Zena has 3 children, and Zoe has 2 children as per the example above. If this occurs, applying a strict per stirpes approach, the grandchildren would only be entitled to the 1/3 that their parents were entitled to and so Zach’s child would inherit 1/3 and Zena’s 3 children would share 1/3 as would Zoe’s 2 children.
With a per capita approach, all of the grandchildren would share an equal share in the estate so it would be divided equally into 6 shares. Applying a per capita with representation approach, the distinction is the result would be the same as per stirpes if only grandchildren survived, which would be an equal division of the estate. Applying a per capita with representation approach, if any of Zeb’s children survived then that child would receive a 1/3 share, and the balance of the estate would be shared equally among the grandchildren.
A key distinction between a per capita approach and a strict per stirpes approach is that with a per capita approach all of the grandchildren are cut off if one of Zeb’s children survives due to a member of a higher class having survived. Another key distinction is that under a strict per stirpes approach, the members of the same class of grandchildren will not be awarded an equal share even if none of the children (higher class) survive because their share will always be based upon that of the higher class (their parents).
Florida Last Will and Testament TYPES
To make this all just a tad bit more exciting, there are a number of different TYPES of Florida last will and testament documents to remember such as a Florida pour over will, Medicaid will, and a Florida will that includes a testamentary trust. Guardianship provisions are also included in Florida wills for important reasons to be discussed. Holographic wills (or handwritten) wills aren’t allowed in Florida but may be recognized if executed in another state that allows them.
All of these “types” are enhancements or upgrades (to use a car analogy) to the standard last will model that we’ve been discussing. So all of the formalities and fundamental terms will apply unless specified otherwise.
A pour over will in Florida is used when there is a revocable trust (hereafter the “trust”), so this should tie together nicely with the discussion to come shortly about revocable living trust planning. Think of this as a pitcher (of water) pouring the estate assets into the trust.
So this kind of will, instead of making the distributions to a single beneficiary or beneficiaries (remember specific and general bequests), will generally make one distribution into the Trust. This type of will requires all of the other key provisions mentioned in this chapter but is unique in its function because it essentially transfers the duty to distribute the estate assets to the trustee of the trust rather than allowing the probate judge to do so via the last will under the charge of the personal representative.
Holographic wills are not allowed in some states but are accepted in others. A holograph is essentially a “handwritten will”. Generally, the requirements are that it be in the testator’s own handwriting, signed and dated by the testator. Another implied requirement is that it can be identified as a will by some descriptive language such as “This is my last will” or “Upon my death I bequeath my assets to…” If all this can be verified, a holograph can be admitted to the probate court as a valid will. For many reasons, this is not the recommended approach to estate planning, but it may be useful if death is imminent and only a pen and paper are handy.
A Florida last will and testament that includes a testamentary trust is a last will and testament in Florida that adds a trust fund for children or other beneficiaries. This type of Florida last will and testament creates a trust that becomes effective upon the death of the testator, and this is distinct from a Florida revocable living trust, which becomes effective during the lifetime of the settlor (the person who sets up the trust). This type of Florida last will and testament is generally longer and more involved than the others because the provisions of the trust, such as the appointment of a trustee and other requirements of the trust, will be included in the will.
A Florida Medicaid will creates a specific type of testamentary trust and is not a well-known concept among the general public. This type is a strategy for Florida Medicaid planning, which will be discussed in more detail in the Chapter 3. Suffice to say it is a last will that creates a supplemental trust fund in order to allow a spouse who is receiving Medicaid benefits for long-term medical care to continue eligibility after a spouse passes away. This unique last will accomplishes this goal by allowing the estate assets to be held in a separate supplemental fund to provide for the surviving spouse’s incidentals.
When a Will in Florida is Challenged [Undue Influence]
One of the things to watch or for when creating your last will is whether it will be challenged by an aggrieved beneficiary. In addition to problems with formalities, discussed above, one of the key ways that wills may be challenged, although not often successfully, is by alleging that a change or the will itself was prompted by undue influence. To make this kind of claim stick, a few factors need to be present which you should be aware of summarized as follows:
- A will recently changed by…
- An elderly or infirmed person
- With diminished capacity
- Some indication that the testator’s free will was subject to the influence.
The courts look at undue influence with a fair amount of scrutiny, and perhaps rightfully so, because people are free to change their will and do what makes them happy, in general. However, if the above factors are present and backed by evidentiary proof that the testator was taken advantage of and whose free will was intentionally manipulated, the last will could be invalidated.
Changing a Florida Will [Codicil or Replacement]
If a person wants to update a last will in Florida, it does NOT necessary need to be redone. A codicil to the will may be used to make the change, provided it is done with the same formalities of the last will discussed above. The easiest way to think of a codicil is like an amendment to a contract LIKE an amendment to a trust in Florida, which is used to substitute a portion of the contract for something new. On the downside, codicils or often viewed by professionals as confusing and thus it isn’t uncommon for estate planning attorneys to suggest replacing the entire will rather than doing a codicil.
There you have it…up to date guidance concerning how to make sure that your last will and testament in Florida is valid and enforceable.
Of course, estate planning in Florida should involve much more than a simple will for most people, particularly those needing estate planning for high net worth estates in Florida. You should determine if a Florida revocable living trust makes sense AND if you should also explore a solid Florida asset protection plan. If you own a business, you may have a need for Florida business continuity succession planning. Call us and get the information to create a complete estate plan for yourself and your loved ones.
Steve Gibbs, Esq.
I’m trying to just find out simply whether or not in Florida does a Last Will and Testament need to be Notarized. Can I get a straight and simple “yes” or “no” answer to that? Thank you!
Hi Jen,
In general a last will in FL doesn’t need to be notarized in order to be enforceable provided it is signed (witnessed) by two witnesses who are disinterested (have no interest in the estate distributions). However, the practice of attaching a notarized affidavit to a FL will is standard practice and highly recommended so that the witnesses don’t need to be tracked down in order to “prove” the will. Thus, the notarized affidavit is called a “self proving affidavit” and makes the will self proving. I hope this helps!
Best,
Steve Gibbs, Esq.
Can I live in one county in Florida and have my witnesses sign and be notarized in another county in Florida.
Thank you.
Hello Donald, thanks for visiting and commenting. The answer is yes, assuming that you’re signing in the presence of both witnesses in whatever county you’re in because this is required. In other words, you can’t sign in one county and have the witnesses and notary in another. However, you can always sign your last will in front of witnesses in one county even if you live in another.
Best,
Steve Gibbs, Esq.
If I have a will in another state is it valid in another state where I now live? OR do I need to do a new one Thanks
Hello Donna, thanks for you interest and comment. The short answer is that the will is valid in FL, yet the older a will is, the more likely that it can create probate problems in Florida. For example, if an older will was not notarized, the witnesses may need to be located in order to validate the will and this causes problems. In some other states, wills are not notarized so this can compound the problem. Often it is advisable to have a new will done in FL to curtail any problems if you’re intending to be a long term FL resident. Let us know if we can help further.
Best,
Steve Gibbs, Esq.
Can the law firm that does the will provide the witnesses to the signature of the testator?
Hi Tricia, thanks for your comment and it is a great question. The answer to whether the law firm can provide the witnesses is generally yes and this is a typical practice by most firms. Of course, any witness needs to qualify on other criteria such as being “disinterested” not taking part in the estate and, in my opinion, not being a relative to the testator AND all other formalities for signing in a given state need to be observed. I hope this helps!
Best, Steve
If I am now living aboard and have my will done there, is my will be valid in FL?
Hello Malee, the short answer is that a valid will properly prepared in another jurisdiction should be recognized in Florida. However, if you’re a Florida resident, the best policy is to have your documents prepared in Florida.
Hope this helps.
Best,
Steve Gibbs, Esq.
I live in Africa, I’m not an American citizen, but I have property assets in Florida. I would like a simple will appointing my wife as the sole beneficiary, or my three children equally if she dies before me. How do I go about this?
Good morning Edward,
Typically, for non-U.S. citizens, I recommend a simple trust to avoid probate in the U.S. rather than only a last will. A next step would be to schedule an initial discussion of your goals and concerns. Go ahead and e-mail Gene at admin@gibbslawfl.com to start that process.
Best,
Steve Gibbs, Esq.
Does a revokable living trust need witness signatures in FL if it has been notarized?
Hello Lynn, although it is probably subject to a bit of debate, I would say that a rev trust should by attested by 2 witnesses even if notarized, in the same way that a will is, because it is a testamentary document, meaning that it passes assets upon the Grantor’s death. I suggest getting professional assistance with any signing to avoid error.
Best,
Steve Gibbs, Esq.
My elderly mother, following her spouse passing away last year is planning to move to Alabama where she will be living with my younger brother. Is a valid will prepared in Florida (recently-prior to her move) valid in the state of Alabama?
Hello Guy, thanks for reading and your comment. In general, a valid last will prepared recently in FL shouldn’t have a problem being admitted in another state due to the fact that FL requirements for wills are among the strictest in the U.S. I can’t comment on AL as I’m not licensed there. I should mention that each state has its own unique rules and requirements, so in general, a last will that is prepared by a local expert attorney is often the safest bet. Also, the older a last will is, the greater the likelihood of problems, so it is good that your mother’s will in FL is recent. To be on the safe side, you should consider a consult with an AL estate planning attorney just to rule out any complications.
Best, Steve Gibbs, Esq.
Who is to say that a Florida will of the deceased that is not properly or legally executed by the executor cannot be contested when the will had not been disclosed or had been concealed by the executor? The only copy being held by the executor. What if probate is informed or is not informed of the will?
Hello Michael, thanks for reading. I’m not sure I understand your question. You’re saying at a will that is NOT properly or legally executed CANNOT be contested? If I understand you correctly, it absolutely could be contested if not properly or legally executed. Perhaps you meant to say that WAS properly legally executed. In that case, I suppose it is possible if the will was concealed that it wouldn’t be admitted. However, this would arguably be an act of fraud in some form by the executor, so they would be culpable for that.
Best, Steve Gibbs, Esq.
Can a will that was changed be re executed with the original date or does there need to be a current re executed date?
My father had a new will done in Florida 05/2019 where he is now a full time resident. Upon reading the new will, I pointed out to my father that I was no longer his executor, his girlfriend was. He was shocked and confused how that happened. He contacted the attorney who then re wrote the will with me as executor, however the new will has the same date, witnesses and signature pages as the 05/2019 will.
Is this legal and common practice in Florida? Just very concerned that there are now 2 wills with 2 different executors executed on the same date. I called the attorney that prepared this for my father and was told this is ok and that the prior will had been destroyed. Appreciate any advice on this.
Hello Tammy, thanks for reading and commenting. It’s hard to offer feedback on what another attorney did without really knowing all of the facts. However, if a will is updated by having been backdated, that is a cause for reasonable concern. So, I think you’re probably correct to have some concerns about the other will due to potential discrepancy between the 2 wills, with the same date, if a copy of the other one was given to anyone such as your father’s girlfriend. Ultimately, who is the executor (commonly referred to as Personal Representative in Florida) is a choice that belongs to your father and his best wishes need to be protected by consistent, clear legal documents.
I hope this helps.
Best, Steve Gibbs, Esq.
Hi Mr Gibbs,
My father became incapacitated in the 1980s. In the late 1990s, my mother and a NY state attorney were appointed co-conservators. My parents have now lived in FL for over 20 years and interested in a living will in regards to their only big asset which is their current home.
Can my parents still do a living will? What are the rules in this case when it deals with an incapacitated person; are they still able to sign the living will? Are there any specific documents that my parents will need to show in regards to the NY state proceedings?
Thanks for your help.
Hi Mr Gibbs,
My father became incapacitated in the 1980s. In the late 1990s, my mother and a NY state attorney were appointed co-conservators. My parents have now lived in FL for over 20 years and interested in a living will in regards to their only big asset which is their current home.
Can my parents still do a living will? What are the rules in this case when it deals with an incapacitated person; are they still able to sign the living will? Are there any specific documents that my parents will need to show in regards to the NY state proceedings?
Thanks for your help.
Hello Jo, thanks for reading and commenting. I don’t have enough facts from your description about your parents’ “capacity” to comment whether they would still be able to do a living will and this really would require a personal interview with them and a review of their medical status. However, in general, “capacity” is required, meaning a true understanding of the nature and quality of their decisions (their actions). I recommend that you get an expert involved in this because if they can’t sign new documents, a Florida Guardianship appointment may be required.
Best, Steve Gibbs, Esq.
Jo, thanks again, I can’t comment on the NY state proceedings and as stated in the previous response, you need an expert elder law attorney up there to advise you on these steps.
Best, Steve Gibbs, Esq.
I see where my mother in law assigned her youngest son (4 sons altogether) as the executor and she directs her executor to distribute the balance of her tangible personal property to her executor. Yet, in the next paragraph she goes on to say she leaves the residue of her estate to her4 sons equally. It seems conflicting. Does it all go to youngest son or split equally 4 ways?
Hi Karen, thanks for reading and commenting. It’s hard to offer any feedback without personally reviewing documents and we can’t offer legal advice in a blog comment. However, in general, it is possible that the personal property is being handled differently than the other estate assets (the residuary). The executor (Personal Representative in FL) may have discretion over the personal property assets whereas the other assets are to be distributed equally. I hope this helps and feel free to e-mail our legal director Gene at admin@gibbslawfl.com if you’d like to schedule a more in depth discussion.
Best, Steve Gibbs, Esq.
Is it true that Florida wills have to be reviewed every 5 years by an attorney or the estate could be required to go through probate?
What action should be taken if you inherited five thousand and it’s written 50,000. Two different amounts?
Hello Debbie, thanks for reading and commenting. In my opinion that is true insofar as a will that is older could have issues that lessen the chance of it being admitted such as formalities that weren’t properly observed or witnesses who are deceased. That said, there absolutely no legal requirement that a will more than 5 years old cannot be admitted. As a practice it is good to have all documents reviewed at least every 5 years if not every 2-3 years.
Best,
Steve Gibbs, Esq.
Hello Robert, thanks for commenting. As is often the case, it is tough to comment on your concern without seeing the documents. In general, the written amount of five-thousand may be the reliable number there because it is easier to accidentally ad a zero rather than misspell five/fifty… In a dispute over the amount, a court would most likely try to determine the true intent of the deceased person of concern.
Best,
Steve Gibbs, Esq.
I am willing my home to my daughter , does my daughter have to have her husband sign a post-num to ensure he will have no rights to my home when I pass? Would a notarized agreement signed by all parties be acceptable in the Florida courts?
Hello Tami, Thanks for commenting. Given the homestead laws in FL, yours is actually a rather complicated question. In general, if you were to pass and your daughter and husband live in the home as a primary residence then homestead protection would probably give him rights to the home upon upon your daughter’s death. Notarized agreements are not in general effective for any kind of testamentary (death) transfers unless they are a valid deed. Post-nuptials and homestead waivers are effective for determining marital rights to property upon divorce and death. With all of these things in mind, which should only be considered “educational” and not legal advice, I highly suggest you seek professional help with this given your goals. I’ve observed too many title problems and expensive issues resulting from do it yourself legal planning. We are rolling out a platform of virtual services soon and could help you with personal FL legal advice that is all web based. Bookmark the website and you’ll see some changes in the future. If you’re interested in talking sooner, connect with Gene at admin@gibbslawfl.com. I hope this gives you some direction.
Best, Steve Gibbs, Esq.
Just learned my handwritten will is not legal in FL. The witness page is a document signed by three people but not notarized. How can this be resolved?
Hi Nancy, thanks for inquiring. I recommend you do an updated last will to eliminate all confusion. We are adding some web based options for this at a more cost effective rate. Watch our website as will be available there at https://www.gibbslawFL.com. If you’d like traditional help, connect with Gene at admin@gibbslawfl.com.
Best, Steve Gibbs, Esq.
Please I need help can a notary notarize a last will. the notary is not related to the person, but one of the beneficiarias if family of the notary? the witness are not related neither. and the testator is not related to the notary. is just a house and needs to be change to the person he is leaving the house to.
thank you. FL
Hello, if I understand your question correctly, a notary who is one of the beneficiaries should NOT be notarizing the last will. I strongly suggest you get expert help with this as it seems that there is a need to do this right as there is a house involved.
Best, Steve Gibbs, Esq.
My mother had a Will drawn in FL in 2008 and owned property their in a JTWROS with my brother (un known to me). My mom passed in 2019 in NC where she also owned property, and had not been to Fl in a few years. I found her Will (drawn in Fl) naming my brother and I co-personal representatives. My brother signed as one wittness along with the attorney (his best friend) signing as wittness. In NC an interested wittness is unacceptable and void of any benefit under the will. Is an interested wittness and family member, acceptable and legal in Fl? The Will is notarized as well.
Hi Dian, thanks for your question. An interested witness is not acceptable in FL either as a general rule and is similarly treated as such on FL. The notarization wouldn’t correct the issue with witnesses.
Best, Steve Gibbs, Esq.
I strongly agree, thank you for sharing. This article is very beneficial to all readers. Great work.
Thanks for summarizing Florida’s confusing Laws.
In Fl. 2019, I put all my assets except my car, into a Revocable Living Trust. Upon my passing I understand this will avoid Probate and distribute assets quicker.
I now want to change and delete some beneficiaries. I currently list 25. Can I create an Excel spread sheet to list the new beneficiaries and the percent of my assets they’ll receive, add it as a bee Codicil, and have it notarized & get 2 witnesses? My current Attorney says the changes must be in writing in the body if the Will. Their request to rewrite seems cumbersome and costly, when I can simply do this via a Codicil.
Your thoughts?
Hello Greg, your attorney is advising you properly in my estimation. You can’t do spreadsheet as a codicil and I never recommend codicils in any event. Also, I’ve personally observed a lot of estate chaos because someone wanted to go the cheap route. If you don’t trust your attorney, I recommend finding a new one.
Best, Steve Gibbs, Esq.
I live in Florida and created a hand written will that concludes with my signature that was witnessed by 2 disinterested neighbors. I think it’s legal but I’d appreciate knowing what you think. Thank you!!
Hi Charles, unfortunately, yours is what we call a “holographic will” and these are not recognized if executed in FL. I highly recommend that you “bite the bullet” and get a reputable attorney to help you put this together. There are too many things to mess up and if that happens, the cost of the will is a fraction of what it takes to fix an estate.
Best, Steve Gibbs, Esq.
My stepmother was recently placed in a memory care nursing home for the late stages of Dementia. My dad’s will reflects the 30% Fl Law plus more giving my stepmother the house/property/auto and 25% of the trust.. In the event that my father passes before my stepmother, is the 30% strictly enforced? What changes can he make to his will to ensure her care is continued and then upon her death any remaining inherited assets are absorbed back into the trust and divided among the other trust recipients?
Hi Kristine, great question. We do what we call Medicaid Wills for exactly this reason. This document takes the Statutory Elective Share and allocates it to a Special (Supplemental) Needs Trust for the spouse’s benefit, thereby preserving the benefits and the 30%. As far as the house and auto, homestead covers the house and the auto is allowed under current Medicaid rules.
We can provide the Medicaid wills via virtual signing and ship documents anywhwere in FL.
Let us know if you would like to schedule a discussion by call our office – 239-415-7495 or e-mailing Gene at info@gibbslawfl.com.
Best, Steve Gibbs, Esq.
My father is deceased and left a revocable trust dated 1991. My mother passed July 7, 2021, and there is also a recorded will at a law office in Tallahassee. I requested a copy of both documents from the person as l representative of both items, my oldest brother, but he will not send them. (He’s even stated twice she left no will even though I told him it is at a law office.) The law office will not send them because they say, 1) They cannot be my lawyer because of conflict of interest, 2) he had not retained them to probate the estate. He does not plan on getting a lawyer for the estate. What can I do to get the documents and make sure what he does is legal. There’s a homestead included in the revocable trust, along with other assets. He is stone walking me, and doesn’t want the estate to go through the courts.
Hello Faye and thanks for your comment. The short answr is you could hire a lawyer to open a probate if your brother refuses to do so, since a lawyer is required for handling probate matters in Florida. Let us know if we can help.
Best, Steve Gibbs, Esq.
In Florida, do the probate courts accept wills hand written by “friend” and 2 witnesses? Or does it make it invalid because he did not physically write the will himself?
Hello Robert, unfortunately, hand written (holographic) wills written in Florida are not valid, though if written in another state that accepts them, may be deemed valid in Florida on that basis. Tricky situation due to Florida’s strict formalities for wills.
Best, Steve Gibbs, Esq.
Hi. Is there any way we could find or get information where the will of a Veterans is located or stored?
My Dad was a Veteran Honorable discharge and he passed away 2 weeks ago since then we keep searching in our house his office for his Last Will and called all the Clerk County, VA,Insurance,Bank etc. But could not find anything to locate his will. I remember back in 2017. he told me that he revoked/codicil his Last Will, there must be a way or option to locate it??
Hello Karen, I’m not aware of a particular location although it would make sense that there may be one for our veterans.
Best to you in your search.
Steve Gibbs, Esq.
My mother, a Florida resident, This past May she created both a Florida revocable trust and an accompanying Florida will that pours over into the trust. Her only income was from Social Security and she had no savings (only debt). Her SOLE asset is a house of nominal value located in Maine. The house was transferred into the trust before she unexpectedly died weeks after making the trust and will. I am the successor trustee and executor of the will. I am now trying to sell the house for the (now irrevocable) trust and distribute the proceeds to the trust/will beneficiaries. There was a lien on the house securing a bank loan that I paid off after my mother died. The bank acknowledged full payment of the loan and released he lien. The real estate attorney handling the sale asked that I get a copy of the Title Insurance Policy that the bank used to secure their loan issued to my mother. The bank refuses to do so until I can prove I am the Personal Rep of my mom’s estate. I provided the bank copies of my mother’s trust (naming me successor trustee), her will (appointing me executor), and a “Notice of Trust” document, and an “Acceptance of Successor Trustee” document. Copies of all of these referenced documents have been filed with the local Circuit Court . The court kept the original will and sent back date-stamped copies of the other documents indicating that they have been accepted and filed. Notwithstanding, the Maine bank won’t give me a copy of the Title Insurance Policy they used to secure my mother’s loan because, in their opinion, all the above documents are not sufficient to prove that I am the personal rep. for my mother’s estate. The clerk of the Florida circuit court told me that the date stamped “Acceptance of Successor Trustee” document that they sent back to my IS proof that I am the personal rep. Unlike the probate court (which we avoided via the trust), the clerk of the court said they don’t issue a specific letter indicating that I am the personal rep. for my mom’s estate.. So I am caught between a rock and a hard place. . Is the bank wrong… or is there some other Florida document short of going through probate that will prove I am the personal rep.?
Hello Chris, theoretically, if the house is in titled in the trust then that should work; however, much falls upon the protocol of a particular bank not to mention the skill level of the personnel involved. You may need legal help to resolve this.
Best, Steve Gibbs, Esq.
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