Proper Execution of a Will

Proper Execution of a Will

 

            There are several requirements of Florida Statute 732 that must be met in order to have a validly executed will.

 

            Florida requires that all wills must be written—no oral wills.  There is a preference for typed documents, but a hand written will is sufficient if the will meets all of the other criteria.

 

            A will executed in Florida by a nonresident is valid in Florida if the executed will meets all of the execution requirements of the testator’s home state.

 

            First, the testator (the person who signs their will) must sign at the end of the will.  If the testator is unable to sign the will, a proxy may be used to sign the will, but the proxy must sign the will at the testator’s direction and in the testator’s presence.

 

            There are to be no changes made to the will after the testator has signed it.

 

            Second, the witnesses must either see the testator sign the will or be present when the testator acknowledges that s/he signed the will.  There must be two witnesses, one of the witnesses cannot also serve as the notary.  The witnesses must sign the will in the presence of each other and the testator.  Beneficiaries of the will may serve as witnesses, but this could lead to a legal challenge in the future, so it is a best practice to have non-beneficiaries witness the will if possible.

 

            There is some disagreement over the “presence” requirement.  The best practice is to have the testator, witnesses, and notary all in the same room within sight of each other while executing the document. 

 

            Third, the will must be notarized by a valid notary public.

 

            In addition to the will, the testator, witnesses, and notary should simultaneously execute a Self-Proving Affidavit.  The Self-Proving Affidavit eases the probate process.  The Self-Proving Affidavit includes statutorily required language that indicates the Will being entered into probate is the same will the witnesses and notary saw the testator execute.

 

            When executing a will, self-proving affidavit, or any other estate planning document, precise legal procedures must be followed.  If one of the legal requirements are not met, the document may be deemed invalid.  Avoid these problems and consult with an estate planning attorney, such as myself, to walk you through this process.  Please call me today to schedule your appointment.

 

Probate Summary Administration

When an individual dies owning assets that must be probated in order to change title to the beneficiaries or to make distributions to the beneficiaries, the attorney handling the probate process will have to decide whether the estate must utilize formal administration, or whether the estate qualifies for one of the simpler forms of informal administration for small estates.

 

 

The summary administration is commenced by the filing of a petition for summary administration, which must list the beneficiaries, the assets subject to probate, and all known creditors. The petition must be signed by a licensed Florida attorney. In a testate estate, the petition must also be signed by the surviving spouse, if any, and all beneficiaries of the estate. If there was no will, the petition must be signed by the attorney, the surviving spouse and all heirs at law. If the petition is not signed by a beneficiary who will receive their full share, the beneficiary must receive a formal notice of a hearing on the petition. Those signing the petition do so under penalty of perjury. Any omitted beneficiary or creditor of the estate may recover attorney’s fees for enforcing their rights.

 

To qualify for summary administration, the estate subject to probate must be under $75,000, excluding exempt property, or the decedent must have been dead for more than the two years that creditor claims can be made. If summary administration is allowed, it saves having to appoint a personal representative and saves the expense of posting a surety bond. If a decedent of any size estate is survived by a spouse or child, exempt property includes the homestead and the automobile and up to $10,000 in household furnishings and certain other benefits, all of which will not count in the $75,000 limit.

 

It is important to review the title to all of the assets of the decedent to determine which assets count as probate assets. Probate assets will not include, for example, tenancy by the entirety property owned by husband and wife that will automatically pass to the surviving spouse. It does not include property owned by joint tenants with right of survivorship that will pass to the surviving owner. Probate assets do not include assets that have a beneficiary designation, such as paid, or transfer, on death designation. It does not include assets that are owned by the trustee of a trust, unpaid wages, unemployment compensation and other benefits.

 

It is entirely possible that a millionaire could plan to avoid probate with a trust and beneficiary designations, but find after death that an account or vacant lot purchased for investment was titled by mistake in the decedent’s name, which would require probate to transfer title to the trust or beneficiaries. If the assets requiring probate are valued at less than $75,000, summary administration may be available, unless the will states that formal administration is required. If the surviving spouse is omitted from the will or given less than 30 percent of the elective share estate, it may be necessary to apply for formal administration to seek the determination of the amount the surviving spouse is entitled to receive from the probate assets and to seek non-probate assets to fully fund the spouse’s entitlement. Formal may also be required when a life insurance company requires, or where there is pending litigation, such as for wrongful death or malpractice, that requires a personal representative to conduct.

 

If the decedent owned real estate in another state, that property would not be a probate asset in Florida. Only that state can transfer title to that property. The filing of probate in both estates could be required. If the real property in the other states was transferred to a revocable trust prior to death, probate in either state could be avoided.

 

If summary administration is filed, the petition must state that either there are no creditors or the payment of creditors have been provided for, unless claims have been barred by the two year non-claim statute. If claims are asserted after the assets have been distributed to the beneficiaries, those beneficiaries are liable for their pro-rated share of the claim, up to the value of the asset they received.

 

After the judge reviews the petition, or after the court has held a hearing, the judge will sign an order, prepared by the attorney signing the petition, that orders the distribution to the proper beneficiaries. A certified copy of the order presented to the financial institution will secure the transfer of that asset to the persons named in the order. The order will be filed where deeds are filed to act as a deed of the property to those designated in the order.

 

Summary administration is available to both the assets of a Florida resident and to the assets located in Florida belonging to a non-resident. The statute provides for the method to admit foreign wills to probate and the steps required to authorize a foreign personal representative to administer estates. If a decedent owns real property in other states, an attorney in those states must be hired by the Florida attorney to handle the out-of-state property, since the rules of probate differ greatly among the states. Dying with real property located in many different states can become very expensive, unless the property is owned by an LLC which converts the decedent’s interest to personal property administered in Florida or the different properties have been transferred to a trust prior to death.

 

There are other forms of informal administration available for small estates in certain instances. Suppose a person receiving Medicaid nursing home benefits dies with $1,800 in a checking account, because his or her asset limit is $2,000. There is a procedure to obtain these funds to reimburse the relative who paid the cremation or funeral costs. Florida Statute 735.301 allows certain personal property to be distributed without formal administration or the involvement of an attorney or personal representative. It provides that when the only property subject to administration is personal property with a value that does not exceed the value of the preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, no administration is required.

 

I occasionally hear of situations when the decedent’s child who has paid the funeral bill, decides not to file probate to obtain these limited funds because Florida Statute sets the minimum attorney’s fees at $1,500. Perhaps during the initial free consultation that many attorneys offer, the adult child should be advised to write a letter or send an affidavit to the probate division of the clerk of court at the courthouse. The deputy clerk will assist with the paperwork and obtain from the judge a directive under the seal of the court authorizing the transfer, payment or disposition of the funds to the person who paid the expenses. The limit for this procedure is the total of funeral expenses and recent medical and hospital bills up to the value of the assets. Family often inquire whether, if they front funeral expenses, will they be reimbursed, even though the will gives the total estate to another person. The answer is yes if there are funds.

 

Often, the client has properly planned their estate through trusts and other probate avoidance strategies, only to find the automobile was held in the decedent’s name. Many insurance companies will not insure a car owned by a trust because they are basically insuring the driver and need to know the age of the driver. There exists a procedure for transferring title. FS 319.28(1)(b) makes it possible to secure transfer of motor vehicle title without probate.

 

If there is no will, an heir can sign an affidavit stating that the natural heirs have agreed to transfer the automobile to that individual and that the estate is not indebted. In a testate case, the affidavit must accompany the will and death certificate and be signed by the personal representative nominated in the will and state the estate is not indebted. Paperwork is submitted to the office where you change title to a car and they will effect the transfer, without the involvement of an attorney.

 

Florida Statute also has a method where the spouse or decedent’s children can obtain the income tax refund, provided the refund is under $2,500, if the application states that the decedent is not indebted or all assets are exempt from creditors.

 

It is important that soon after death, the family begins to work with a knowledgeable probate or elder law attorney to review the assets and receive information on these various methods of informal administration, some of which do not require retaining an attorney other than to make the family aware of their availability.

 

If the review indicates the assets do not qualify for summary administration or that there are issues such as homestead, elective share issues, of federal estate taxes possibly due, then the attorney will have to commence formal administration for large estates. Next week, I will walk us through the steps necessary to open and eventually close a formal administration. I will also discuss the fees and costs.

 

Source:  William Edy, Esq. in Fort Myers News-Press

How to Prove a Will in Florida

Mr William Edy has posted another extremely education article in the NewsPress about how to prove a will:

Last week, I mentioned that any document purporting to be a last will, or document attempting to make dispositions of a person’s property after his or her death, must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the “testator,” is dead. Even if they believe the will is invalid or fraudulent, Florida Statute requires that the custodian of the will deposit the will with the court for the proper county, where the probate judge will decide if it is valid and should be admitted to probate. Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. Upon the filing of a petition for probate, the judge will decide if it is a valid will.

 

Florida Statute sets forth the requirements for a will to be valid. Any document which attempts to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two witnesses. No particular form of words is necessary to the validity of the will if it is executed with these formalities required by law. The proper execution of the will must be proven to the satisfaction of the probate judge. Probate comes from the Latin word meaning “to prove.”

 

There are three ways to prove the proper execution of the will. The first method is by the inclusion of an affidavit attached to the will, which is signed by the two witnesses stating that they signed their signatures above the affidavit in the presence of the testator, who also signed above the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The notary must state that the notary either knows the persons taking this oath personally or has seen acceptable identification. The suggested words for the affidavit are set forth in Florida Statute 732.503 entitled Self-proof of will.

 

Attorneys who prepare wills generally attach this self-proving affidavit to the will because it makes it much easier to commence the probate process. FS 733.201 states that self-proved wills may be admitted to probate without further proof.

 

If the will is not a self-proofing will, the second way to prove the will is by the oath of one of the witnesses. One of the witnesses will be required to sign an oath in front of the judge or deputy clerk of court or commissioner appointed by the court. A commissioner is a notary public that the judge appoints to take the witnesses’ oath based upon the request made by the filing of a written motion. A commissioner is generally used when the witnesses are not located in the same county.

 

The third way to prove the will is by the oath before the judge, clerk of court, or commissioner signed by the personal representative nominated by the will, whether or not the personal representative is named a beneficiary of the estate. If the personal representative nominated in the will is not available, then the oath may be signed by any person who is not interested in, or a beneficiary of, the estate. The oath must state that the will is believed to be the last will of the decedent.

 

Individuals moving to Florida often ask the Florida attorney if their will signed in their former state is valid. Florida Statute states that any will, other than a holographic or nuncupative will, executed by a nonresident of Florida is valid if the will would be valid in the state where the will was signed. If the will does not meet the Florida requirements it may become expensive to prove to the judge that the will would be valid in the other state unless it was already admitted to probate in that other state. A holographic will is a will written in the handwriting of the testator. A nuncupative will is an oral will.

 

Lowell Schoenfeld, a Florida board-certified wills, trusts and estates attorney, e-mailed me asking that I remind our readers that oral wills are not valid. Even written letters or statements from the decedent that, for example, one child is to receive an extra $50,000, if that document is not properly witnessed by two witnesses, will not be considered a valid will or even a valid codicil. A codicil is an amendment to a will. He indicated that he had three cases in one week where this issue arose. That oral statement or un-witnessed document will not be effective by the court to authorize the extra gift.

 

Florida Statute also provides that the testamentary aspects of a revocable trust, that is, those aspects which attempt to transfer interests to others after the death of the trust maker, must be executed with the same formalities of the will and may be proved in the same manner as a will. Recently, a client who executed a trust some time ago sent me a courtesy copy of an amendment to his trust to place in his file. I had to call him and inform him that the amendment was not valid because it was not properly executed, even though he had signed the document he prepared himself. Because not all states have this requirement, it is dangerous to use a form from a self-help book or off the Internet.

 

I believe it is improper for an attorney to do something to ensure he or she will be hired to complete the probate.

 

One way is for the attorney to designate himself or herself to be the personal representative, unless the client is a relative or the client has no other friend or relative to nominate.

 

Another way is for the attorney to retain the original of the will so the beneficiaries will have to come to the law office to obtain the original, at which time they will be pitched. Some attorneys do store the originals, but I believe it looks bad.

 

A third way attorneys used to ensure their hiring is to not prepare a self-proving will so the beneficiaries will have to hire that attorney who witnessed the signing of the will to go to court to sign the oath before the judge or clerk of court. Other than out-of-state wills, I do not often see this practice done by Florida attorneys.

 

If you have signed a will, you should have the original in a safe place and review it to ensure that it is a valid will. You should review it or ask an attorney to review it, every few years, especially if you have married, or have adopted, a child after signing the will, which is called “pretermitted.”

 

A pretermitted child has the right to receive the same share they would have received if the deceased died without a will, unless the will clearly indicates that the omission was intentional or unless the decedent is survived by at least one child which is not pretermitted and the will devises substantially all the assets to the spouse. If the deceased failed to marry the other parent of the pretermitted child, the child could inherit all of the estate and the other parent or siblings receive nothing.

 

A pretermitted spouse has the right to the same share they would have received if the decedent died intestate, unless the right to inherit is specifically waived in a prenuptial or postnuptial agreement, or the spouse is provided for, or the will evidences an intention to not make provision for the spouse. Even if the will omits the spouse or fails to give the spouse 30 percent outright, the spouse may elect to take a 30 percent elective share, which was the subject of an earlier article.

 

The elective share may be a problem if the surviving spouse is receiving Medicaid for nursing home expenses. The receipt of assets from the deceased spouse, or the right to receive them through the elective share, could cause loss of those benefits, unless a certain type of will is used by the community, or at-home, spouse.

 

Assuming the will is valid, the attorney handling the probate process will have to decide whether the estate must utilize formal administration, or whether the estate qualifies for one of the simpler administrations for small estates, which will be the subject of next week’s article.

 

Source

Your Will: Who can legally serve as your personal representative?

In a follow up post, the NewsPress posted the following about who can validly serve as your personal representative:

Last week, I discussed how, and to whom, your assets will be distributed to your family after you die as dictated by Florida Statute, in the event you have not signed a last will prior to your death. I indicated that having a valid will is greatly preferable to having no last will, although trust planning is generally even more preferable. Signing a last will generally ensures that your assets will be distributed to those beneficiaries you chose during your lifetime and that, under most circumstances, you can designate who will do the distributing.

 

 

Other advantages of dying with a last will rather than dying intestate include the possibility of requesting the court to waive the expense and hassle of having to buy a fidelity bond from an insurance company for the personal representative and your ability to make certain tax elections while living. This week, I will begin to review the general process of filing for probate with a last will. I will also mention the requirements for serving as personal representative. Our readers should realize that in some instances you cannot decide to whom all of your assets will be distributed, and you cannot decide who will do the distributing, even with a last will.

 

Some individuals are prohibited from serving as your personal representative, even if designated in the will or given preference under the Florida intestate statute. We have had occasions where a deceased person named his oldest son as personal representative, but when it was disclosed to the court by his disinherited daughter that the son had pleaded no contest to a felony DUI more than 12 years ago, with adjudication entered, the judge of the probate court was prohibited from appointing him and chose the daughter because her minor children were the majority beneficiaries.

 

It is not true the will signor can choose any person they like to serve. Some attorneys, and document preparation services, have the prospective client fill out an intake form from which the will is prepared and do not ask sufficient questions about each beneficiary, which unlearned clients often find intrusive.

 

If the will signor nominated a friend to be personal representative, the attorney should require his or her address and phone number. If the nominee is not related by blood, a person who does not reside in the state of Florida cannot serve as personal representative, even if he or she has no felony record. If you have designated a person who has subsequently moved out of state who is not a blood relative, you should consider signing a new will or codicil naming a Florida resident or blood relative.

 

If you have designated a person who now, not when the will was signed years ago, has been convicted of a felony anywhere, or is not mentally or physically able to perform the duties, or is under age 18 years of age, the person will not be appointed by the judge. Instead, the judge must appoint the alternate nominee in the will and if none, then the person who is listed as first in order of preference under the intestate law that governs persons who have died without a last will.

 

Even if the person who is a non-resident of this state, but promises the will-maker that he or she will move to Florida in order to administer the estate after his friend dies, that promise will not comply with the law. The friend must be a resident of this state at the death of the will-maker. The individual appointed must also be “sui juris,” which means a mentally competent adult, over age 18, who is presumed to be able to be bound by a contract. It is opposed to a person under age 18, legally called an infant and a person who is non compos mentis, or mentally incapacitated. In order to sue a person you must allege that the person is sui juris. The term comes from the latin term meaning “of one’s own right’ which means of full age and capacity. Although it is not impossible to sue a non-resident, it is more difficult and expensive for the estate to do so if an out-of-state person abused the position.

 

It is a good idea to ask a person who you have named, or are considering naming, to serve as personal representative, if he or she has ever been convicted of a felony and, if not a blood relative, if he or she intends to maintain residency in Florida. Also, if the friend or relative owes the deceased money, he or she may still be appointed, but the appointment will not extinguish the debt. If a person simply fails to disclose that he or she would not be qualified to serve and another person files to remove that person, the person who signed the oath of personal representative under oath and penalty of perjury will be liable for the attorney’s fees and costs, in addition to other damages in a removal action. If the person does meet these qualifications and desires to serve and is either next in line in the intestacy statute or clearly named in the will, the court must appoint that person even though the siblings disagree.

 

Any document purporting to be a last will or document attempting to make dispositions of a person’s property after his or her death must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the “testator,” is dead. If the document is a trust, the original trust does not need to be filed, but a notice of trust must be filed by the successor trustee. Even if they believe the will is invalid or fraudulent, the custodian of the will must still deposit the will with the court for the proper county where the probate judge will decide if it is valid and should be admitted to probate.

 

Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. If assets were to show up in later years, as often happens, at least the will in the hands of the probate court will be able to be probated and transfer the asset to the proper person. The deceased person may win a suit for wrongful death which will require a personal representative to be appointed, perhaps many years after his or her death. Additionally, the will is needed to distribute the personal injury award to the proper beneficiaries.

 

If the custodian refuses to file the original will with the court after the death of the testator, any interested party may file suit to obtain the filing of the will. Unless the custodian can show just cause for the refusal, he or she will be liable to the petitioner for all damages, costs and attorney’s fees. Willfully refusing to produce the will can be very costly.

 

When the will is filed the person filing the will must provide the clerk of court with the testator’s date of death and Social Security number, both usually accomplished by providing an original death certificate to the probate clerk. Additional death certificates must be provided to each county recorder if deeds will be filed to change ownership of real property and to any financial institution or insurance company before they will pay a beneficiary.

 

Most attorneys recommend ordering from the funeral director at least 10 to 12 death certificates, which cost $10 each. All death certificates had formerly contained a section for the doctor to sign stating the cause of death. Since the legislature was convinced that those dying from AIDS should not have to disclose that cause because of prejudice, now when ordering the death certificates, you must ask for some with the cause of death, for example to be given to an insurance company who may challenge the issuing of the policy for failure to disclose an illness, and others without the cause of death that can be supplied to financial institutions and to be recorded where deeds are recorded to pass property, which makes them quite public.

 

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