Taxation & Estate Planning

How to ?prove? a Will in Florida Probate Court

By Long H. Duong

Anytime you have a testate estate (when there IS a Last Will), one of the first hurdles of probating that Will is “proving” it.

Huh?

Okay, where do I begin?

There are invariably two kinds of Wills that come across my desk:  “Self-Proved” and NOT “Self-Proved”.

Silly, I know, but the difference is quite significant.

Self-Proved Wills

A Will is “Self-Proved” if there is an Affidavit attached to the Will which essentially says that the Will was signed by the testator before 2 witnesses and a notary public.  This is often referred to as a “Self-Proving Affidavit” and frankly, I prefer when it’s titled that way…makes it foolproof (sometimes it will just say “Affidavit”).  The first clue that there is such an affidavit attached to the Will is a notary seal or stamp towards the end of the Will.

If the Will is indeed “Self-Proved”, it should be admitted into probate administration without the necessity of any further proof.  Neither the witnesses or the notary public need be located for further testimony or confirmation.

Wills that are NOT Self-Proved

When there is no such affidavit, things become a bit more complicated.

We now have to determine if the decedent was domiciled in Florida or another state, that is, where did the decedent maintain his or her permanent resident (prior to death.)

Decedent was not “domiciled” in Florida

If the decedent was NOT a domiciled in Florida, but the decedent’s estate was administered (”probated”) in the decedent’s home state, then there is likely to be an “Order Admitting Will to Probate” or some equivalent in that state.  The existence of such an Order is typically enough for the Will to be admitted in a Florida probate court.

However, if the decedent’s estate was never probated in the “home state,” then we will have to appoint a commissioner to take the oath of at least one of the original witnesses to the Will.  Alternatively, you also have the option to have the personal representative take a similar oath if the witnesseses have died or are otherwise cannot be located.

This process of appointing a commissioner is accomplished through a “Petition to Appoint Commission.”

Decedent was “domiciled” in Florida

If the decedent was domiciled in Florida, we must secure an Oath of Witness.  The witness generally must appear before a clerk of court in any county in Florida as part of a “proof of will” process.  Once that is completed, the Will should be admitted barring any objection from a third party.

I’ll avoid getting to detailed with further legal protocol at this point.  That said, you should realize that this is a rather complicated process - much more so that most people realize.

Moral of the story:  Make sure your Will contains language equivalent to Florida’s “Self-Proving Affidavit.”  You and your heirs will be glad you did!

Full post as published by WeProbateFlorida.com on July 27, 2008 (boomark / email).