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Your Will: Is it Enforceable in Florida?

November 6, 2020 CSBB Blog

Generally speaking, estate matters are governed by state law. A will is considered valid when it meets the legal requirements of the state where it is drafted. However, your estate is administered according to the laws of the state where you die. 

As a result, a common question our clients ask is whether their will is enforceable in the state of Florida. The question arises through a common scenario that involves wanting to protect your assets and your family in the unexpected event of your death. Years pass, and you move or retire in Florida. You have a will, but it was drafted in another state. Will your wishes be carried out when you die? A Palm Beach County estate administration lawyer can review your will and let you know whether you could face problems. 

The Short Answer

Florida has some of the strictest requirements for the execution of a will. Fla. Stat. § 732.502 dictates that the following formalities must be met for a will’s validity: 

  1. The will must be in writing; 
  2. The will must be signed by the testator (i.e., the person signing the will), or another person at the direction of and in the presence of the testator; 
  3. The will must be signed at the end; and 
  4. The will must be signed in the presence of at least two attesting witnesses; and the witnesses must sign in the presence of the testator and one another.

For members of the military, their wills will be considered valid if they comply with federal law. 

A will may be set aside because of the failure to follow the formalities.  Every case is fact-specific, but a recent Florida decision shows just how strict those formalities can be.

In Bitetzakis v. Bitetzakis, 264 So. 3d 297, 298 (Fla. 2d DCA 2019), the court found that the testator’s will was not executed in strict compliance with Florida’s statutory requirement, as the testator only signed his first name to his will, contrary to his usual custom of signing his first and last name to documents.  In particular, the testator, George Bitetzakis, undertook to execute his will at his home on the morning of September 26, 2013. The decedent, his wife, and two witnesses—Thomas Rivera and the parties’ pastor, Santiago Alequin—gathered in the Bitetzakis’ kitchen, where the parties met for weekly breakfasts. Rivera was the first person to sign as a witness and did so at the decedent’s request. Alequin was the second to sign as a witness. After Alequin signed, the testator began to sign the will but stopped at his wife’s, Ana Bitetzakis, instruction because she believed that he needed to sign before a notary. 

Only the testator’s first name appeared on the signature line of the will, and the testator normally wrote his entire name when signing documents. The next day, September 27, 2013, she took the decedent to a notary. The testator did not bring the will, but instead brought a self-proof affidavit titled “Affidavit of Subscribing Witnesses.” The self-proof affidavit bore the testator’s signature and the notary’s stamp but inconsistently stated that the testator served as a witness to himself executing his own will. Rivera’s and Alequin’s signatures did not appear on the self-proof affidavit.

The Florida Appellate Court (The District Court of Appeal for the Second District) determined that the evidence did not establish that the testator signed at the end of the will, as the testator never signed with his full name, or directed another to subscribe his name in his stead. The Second District found that the testator recorded something less than his full customary signature, and therefore did not sign the will within the meaning of Fla. Stat. § 732.502. 

The testator intentionally ceasing to sign the will and later signing the self-proof affidavit in an apparent attempt to ratify the document actually dispelled any notion that the testator believed or intended that his first name serves as his signature and assent to the will. 

Because the will was not signed by the testator in strict compliance with Fla. Stat. § 732.502, the will was invalid, and therefore improperly admitted to probate. In Florida, wills must be executed with proper formalities.  If your beneficial interest in a will has changed because of a will that appears to have been executed without the required formalities, you may be able to challenge the will’s validity and have it set aside in favor of an earlier will or—if there is no will—intestacy. 

Holographic & Nuncupative Wills

There are, however, two important exceptions: Florida will never consider holographic or nuncupative wills as valid: 

  • A holographic will is a will that is written entirely in the testator’s handwriting.
  • A nuncupative will is an oral will. 

It makes sense that the courts would not recognize an oral as valid – there are just too many challenges. That said, hand-written wills are not as uncommon as you think. 

What About the Administration of Your Will?

Even though your will may be considered valid, you should be aware that there may be important administrative differences under Florida law.

  • A court will deem your will valid only if two witnesses sign it. If it is not, the court may require that you find two witnesses who can testify in court as to the validity of the will. Witnesses may be very difficult to locate and can result in considerable delays in the administration of your estate
  • In Florida, the person you name as your personal representative in your will must be related to you by blood. If you named someone unrelated as your personal representative, the court might require that someone else act as your personal representative even though it was a valid appointment under the other state’s laws. 

Protect Your Family and Your Estate – Contact a Palm Beach County Estate Administration Attorney Today

If you have not updated your estate plan since moving to Florida, a Palm Beach County estate administration lawyer at Comiter, Singer, Baseman & Braun can identify any potential issues you may face. To schedule an appointment to review your will, call us today at 800-226-1484 or complete our online contact form

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