In a previous blog, we discussed the Florida requirement that a will be self proving. A self proving will must, in addition to the will being signed and dated by the testator, the person whose will it is, includes an acknowledgment should be prepared and signed by the testator and affidavits of the witnesses. The Florida Statute provides a suggested form.
But what if you need to administer a will that is not self proving? There is no acknowledgment page included in the will. Can the will be used in Court? All hope is not lost. The Florida Statue provides for some options. Florida Statute 733.201(2) states: A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
If the will was signed by the testator and two witnesses, you must contact at least one of the witnesses. A witness that is a resident of Florida can complete the following Oath of Witness to Will:
OATH OF WITNESS TO WILL
STATE OF _______________
COUNTY OF ____________
The undersigned ___________________________________ being duly sworn says that the writing purported to be the last will of _________________deceased, a copy of which is attached hereto, is the writing that the decedent executed and that the undersigned and ________________________ subscribed as attesting witnesses on ____________________; and that the decedent signed the original of the writing at the end in the presence of the attesting witnesses or acknowledged in the presence of the attesting witnesses that the decedent had previously signed the writing at the end; and that the witnesses, in the presence of the decedent and in the presence of each other, subscribed their names to the original of the writing as attesting witnesses.
The witness will bring the complete Oath with their driver’s license or photo ID to their local Deputy Clerk who will sign a Certificate of Commissioner. We suggest the witness call the County Clerk to determine the county’s nominal fee that may be assessed for the certification. In some counties the fee is $4.00.
The Oath of Witness to Will must be filed in the probate case. When it has been processed, an Order can be submitted to the Judge asking that the Judge accept the will and allow the probate administration to proceed.
This is the process for a witness that is a resident of Florida. What if the witnesses are out of state? This will be in a subsequent blog.