Categories: Probate Date: Jan 25, 2010 Title: A Self-Proved Last Will & Testament
In the spirit of new beginnings, and getting our affairs in order, my first article of the year focuses on a simple inquiry for those that have executed a Last Will & Testament ("Will"). That inquiry is whether a Will is self-proved.
A "self-proved Will" is a type of Will that is signed by the testator and the witnesses twice. Initially, the testator, the person executing the Will, signs that the document is indeed his or her Will in front of two witnesses who also sign the document. Then, and as evidenced by a second signature, the testator declares and the witnesses swear to a notary public that the Will was executed in each other's presence. A notary public then signs and applies a stamp.
Some Wills are executed where the testator and witnesses only sign once. In other words, they are not self-proved. While such Wills are still legally enforceable, they can create some logistical problems for one's heirs.
If one dies without a "self-proved Will", certain steps need to be taken to prove a Will's authenticity. To prove the Will, someone first needs to attempt to locate one of the witnesses.
Of course, there are often problems with identifying and finding witnesses. As for identification, people may have signed their name illegibly. In addition, people get married and/or change their names. Plus, it's often tough to find witnesses in our transient society and many times the witnesses predecease the testator. In other words, it's not easy to track down witnesses and may actually be an impossible endeavor.
If the witness is located, he or she must then be directed to sign a document entitled an "Oath of Witness" in front of a designated court official stating the Will's authenticity. If the witness is in Polk County, the Oath can be signed in Bartow. However, if the witness now lives out of state, then additional and cumbersome steps need to be taken to administer this Oath.
If no living witnesses can be found, then Florida law requires that the person named as the Personal Representative take an oath on the belief that the Will offered into probate is authentic. I play this saga out for readers to suggest that all of the above-referenced complications can be alleviated by simply having a "self-proved Will". If the decedent has a self-proved Will, then the Will speaks for itself and is more apt to be admitted in to the probate court. Thus, the term "self-proved Will".
If you have any questions regarding whether you have a "self-proved Will", please consult an elder law or estate planning attorney to assist you.