I have written in the past about the dangers of “do it yourself” wills. I have pointed out all of the traps for the unwary regarding Homestead, the Surviving Spouse, and Pretermitted Heirs. One thing I haven’t written about is the danger of improperly signing the document. If the proper procedure is not followed, it does not matter how good the Will is, and it does not matter what the signer’s intent was. An improperly signed Will is invalid, and the estate passes through the laws of intestacy.
(Like always, this post only covers the law of Florida. The laws in other states may vary).
In Florida, the laws regarding the execution of Wills is covered by Florida Statute 732.502. Under the statute, every will must:
- Be in Writing;
- Signed by the testator, or if the testator is unable to sign (say due to paralysis), signed by some other person in the testator’s presence and at his direction;
- The Will must be signed in the presence of two witness who are also in the presence of each other.
I can’t tell you how often people mess up #3 above. When I do a Will Signing, me, the testator and the witnesses all sit at a single table, and no one leaves until everyone is done signing. I will serve as the notary.
A handwritten will without two witnesses, is invalid. A Will in which the testator’s signature is notarized but there are no witnesses is invalid. If you take the Will to the bank, and one person Witnesses the signing, and then goes and gets another teller (who did not witness you or the other witness signing), then that Will is invalid.
The law is strict and unforgiving, and there are no exceptions at all. If the Will is invalid then the estate passes by way of intestacy, in which there is a predetermined formula as to how the assets are distributed.
So even if the “DIY” Will is perfectly drafted, if it is improperly executed, then it is invalid.
