When a loved one passes away, their last will and testament often need to be validated through a legal process known as probate. This process ensures that the deceased’s assets are distributed according to their wishes. In Florida, like many states, having a self-proving affidavit attached to the will can streamline this process significantly. However, what happens if a will doesn’t have a self-proving affidavit? This is where witnesses play a crucial role.
What is a Self-Proving Affidavit?
A self-proving affidavit is a notarized document that accompanies a will, affirming that the will was signed by the testator (the person creating the will) and the witnesses. This affidavit simplifies the probate process because it allows the court to accept the will as valid without requiring further proof from the witnesses.
The Role of Witnesses in Proving a Will
If a will lacks a self-proving affidavit, the probate court requires additional steps to verify its authenticity. The court needs confirmation that the will was executed properly, and this is where the witnesses come in.
Steps to Prove a Will Without a Self-Proving Affidavit:
- Locate Witnesses: Identify the individuals who witnessed the signing of the will. In Florida, a valid will must be signed by the testator in the presence of at least two witnesses, who also sign the will in the presence of the testator and each other.
- File the Will with the Court: Submit the original will to the probate court along with a petition for administration.
- Obtain Testimony from Witnesses: The court requires testimony from at least one of the witnesses to prove the will. This can be done through a sworn affidavit or in-person testimony:
- Affidavit: A witness can provide a sworn statement affirming the circumstances under which the will was signed.
- Court Testimony: Alternatively, a witness may need to testify in court to confirm the authenticity of the will.
Why Witness Testimony is Important
- Witness testimony is critical because it helps the court verify the following:
The testator was of sound mind and not under undue influence when the will was signed. - The will was signed in accordance with Florida law, which requires the testator and witnesses to sign in each other’s presence.
Without this testimony, the court may have difficulty validating the will, which can lead to delays, disputes, or even the will being deemed invalid.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.