Travels through Property Law By Tom Broderson, Esq.
In response to last month’s column, several people asked “What if my will has 2 witnesses, just like Florida requires, follows all other local Florida rules, and I am happy with that will?”
Sorry, but the bad news is, having a will executed outside of Florida is going to cost your family significant expense when the need to use it arises.
First, well-written wills in Florida have a self-proving feature “built-in.” It is an affidavit, signed by both witnesses to the will, stating that they witnessed the testator execute the will in their presence, and that the witnesses executed in the presence of the testator and each other. It is very detailed. Most states don’t have such a provision.
If your family tries to file your (let’s say for example) Michigan will in Florida when you pass away as a Florida resident, they will be faced with an expensive bureaucratic nightmare. First, they will have to petition the Florida Court to commission someone to physically go to Michigan, to get the Michigan witnesses to sign an affidavit, which the commissioner will then have to file in Court here, in order to authenticate your will.
Or, they can fly your witnesses here, to appear in Court in Florida (if they are still alive and able to do so). I’m sure they would love a free vacation, but if one or both witnesses have moved, died, or are otherwise unavailable, it only gets harder. There are also other issues, such as, suppose your Michigan witnesses each saw you sign (or attest to your signature) on your will, but not in the presence of each other… That would not be good enough!
It is SO much easier to write your will here, use Florida residents to witness your signature, and execute the self-proving affidavit, which makes the will “stand-alone” ready to file in Court, without further complication.
While we update your will with a Florida-specific document, you can also create a trust, to entirely avoid probate! We can also update other documents, such as pre-need guardianship papers, health care surrogate designations, and HIPPA compliance forms, to direct health care providers to share information with whichever family members or loved ones you may choose. While we do these forms, we will educate you as to how all of these papers work in Florida, and give you a sense of comfort with all of these issues.
AS I pointed out last month, the very good work you did with your up-north attorney is not lost. All that effort at gathering information, organizing your affairs, and thinking it all through will make the job of updating your planning documents to comply with Florida law much easier.
ANDERSON & BRODERSEN, P.A.,
350 Corey Avenue, St. Pete Beach, FL 33706
(727) 363-6100
www.PropertyLawGroup.com