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How to ensure a valid will

  • By:Neil Lyons

Is my will valid? It’s a critically important question to consider when executing an estate.

What are the requirements for a will to be valid?

In Florida, the requirements for a will to be valid are simple:

  1. The will must be in writing (can be typed or handwritten so long as all execution formalities are met)
  2. Signed by the testator at the end (or by another in the testator’s presence at the direction of the testator)
  3. It must be signed in the presence of two witnesses, or the testator must acknowledge in the presence of the witnesses that she has previously signed the will
  4. Finally, the witnesses must sign the will in the presence of the testator and in the presence of each other. 

That’s basically it. (However, just because a will is valid doesn’t mean it will automatically be admitted to probate. But that’s another discussion for another time.)

Let’s talk about witnesses

Another question that I’m often asked is whether the witnesses to the will can be beneficiaries of the will? The answer is yes. Even a person you’ve left the entirety of your estate, to the exclusion of all others, can act as a witness to the execution of your will. That’s not to say a particular witness won’t be subject to serious depositions in any future probate litigation, but that’s their problem.  

I typically tell clients to pick two witnesses with no interest in the will, because it decreases the chances for future issues.

Now that we’ve covered witnesses, let’s talk about wills that were executed in another state.

Is my out-of-state will valid in Florida?

One of the more common questions I get from clients that are new to Florida is whether their out-of-state wills are valid in Florida. 

Luckily, Florida has contemplated such a scenario. The rule is if your out-of-state will was validly executed in the state where you signed it, Florida law states it will be considered valid in Florida.

However, that does not mean that you shouldn’t have a Florida estate planning attorney review your non-Florida will. In fact, it would be wise for a Florida attorney to review it because Florida has very strict laws about the disposition of your primary residence that other states do not.  

Attorney Neil T. Lyons pursued a career in law for the sole purpose of helping people. His practice is focused on the area of elder law, including estate planning, trust and probate administration and guardianship. His early legal experience solidified his commitment to assisting, whenever possible, two very vulnerable groups: children and the elderly. He has been recognized repeatedly by various organizations for his pro bono efforts in Manatee and Sarasota counties. Neil also consistently engages in service to the legal community and joined the Luhrsen Goldberg staff in 2019. 

Posted in: Estate Planning, Florida, Uncategorized, Will