Drafting a Valid Will and Power of Attorney in Florida: Understanding the Legal Requirements

When it comes to estate planning, it’s important to understand the execution formalities for a valid will and power of attorney in Florida. In this blog post, we will outline the steps you need to follow to ensure that your will and power of attorney are legally binding and enforceable.

A valid will in Florida must be in writing, signed by the testator (the person making the will), and witnessed by two adults who sign the will in the presence of the testator. A notary public is not required to validate a will under Florida law, but a notary is needed for a “self proving affidavit” that is typically attached to the will.

The requirements for a will in Florida are strictly enforced. A will that does not comply with the formalities of signing and witnessing can be challenged and invalidated. The preparation of a will by someone other than a lawyer may constitute the unauthorized practice of law, and an improperly drafted or executed last will and testament will likely increase estate administration fees and costs.

Section 732.502 of the Florida Statutes state the specific requirements for a valid will in Florida. Under Florida law, a last will and testament must be:

• Signed by the testator (the person making the last will and testament) at the end of the will. The testator must at least 18 years of age and mentally competent.
• In writing, either typed or handwritten. Oral and holographic wills are not valid in Florida.
• Have two competent witnesses over 18.
• Signed by everyone (testator and witnesses) in the same room and at the same time.

Although not required, a Florida will should include a self-proving affidavit signed in the presence of a notary and two disinterested witnesses. The self-proving affidavit is attached to the end of the will. The self-proving affidavit eliminates the requirement that the witnesses testify in the probate proceeding to authenticate the will. The notary may not also serve as a witness of the will. Requirements for a self-proving affidavit are found in Florida Statutes 732.503 which states:

732.503 Self-proof of will.—

(1) A will or codicil executed in conformity with s. 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will, in substantially the following form:

STATE OF

COUNTY OF

I,    , declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.

Testator

We,    and   , have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.

Witness

Witness

Acknowledged and subscribed before me by means of physical presence or online notarization by the testator,  (type or print testator’s name) , who is personally known to me or has produced  (state type of identification—see s. 117.05(5)(b)2.) as identification, and sworn to and subscribed before me by each of the following witnesses:  (type or print name of first witness) who is personally known to me or has produced  (state type of identification—see s. 117.05(5)(b)2.) as identification, by means of physical presence or online notarization; and (type or print name of second witness) who is personally known to me or has produced  (state type of identification—see s. 117.05(5)(b)2.) as identification, by means of physical presence or online notarization. Subscribed by me in the presence of the testator and the subscribing witnesses, by the means specified herein, all on (date).

(Signature of Officer)

(Print, type, or stamp commissioned name and affix official seal)

For a power of attorney in Florida, the person granting the power (the principal) must sign the document, and it must be witnessed by two witnesses. If the power of attorney is durable, it must also state that it will remain in effect even if the principal becomes incapacitated. To prove the authenticity of the document, it should be signed by the principal and two disinterested witnesses in the presence of a notary public. Florida statutes Chapter 709 provide the requirements for a valid power of attorney in Florida. Specifically, Florida Statutes 709.2105 provides for the qualification of the agent and the execution of the power of attorney. It states:

709.2105 Qualifications of agent; execution of power of attorney.—

(1) The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.

(2) A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03.

(3) If the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney pursuant to s. 117.05(14).

While that may give you the short answer as to what is necessary to sign the documents, a will or power of attorney can be invalidated if it was procured as a result of undue influence. In short, a will challenger, can invalidate the will by claiming that there was “over-persuasion, duress, force, coercion” so that the person making the will no longer had free agency and free will. At Longa Law, we take certain steps to ensure the will-maker has capacity and the will is not procured through undue influence.

In conclusion, it is always best to seek the advice of a qualified Florida attorney when drafting a will or power of attorney. An attorney can ensure that your estate planning documents comply with Florida law and that your wishes are clearly stated. Contact us for help creating legally enforceable estate planning documents.