In Florida, when a Last Will and Testament is submitted to probate, it must first be found to have been properly executed.
For a Will to be properly executed in Florida, it must been signed by the testator/testatrix and two witnesses all in the presence of each other. Once properly executed, the Will can be made “self-proving” by attaching a certificate or affidavit containing certain matters. First, the certificate must be signed by the testator/testatrix and by two witnesses, all in the presence of each other and in the presence of a notary. The testator/testatrix and the witnesses must swear under oath to the notary that: a) the testator/testatrix signed the instrument as his or her Will in the presence of the witnesses, b) that the witnesses signed the Will in the presence of the testator/testatrix and in the presence of each other. The notary then notarizes the signatures of each of the signing parties.
By following this procedure and having the self-proof certificate attached to the Will, the Will can be accepted by a Florida probate court on its face without having to “prove up” the proper execution of the Will to the court. When a Will is not self-proving, the probate court may require that the witnesses (or in some cases, the proposed Personal Representative) attest to the execution of the Will. This can add to the cost involved in probating an estate and it can add to the time required to open the estate.
Most experienced estate lawyers in Florida prepare the Will and oversee the signing process so that the Will is self-proving. Unfortunately, not all states use the self-proof certification or they do it differently. In those cases, if the Will is submitted to probate in Florida, even though the Will may be valid and enforceable, it’s proper execution may still have to be proven-up to the probate court.
