Wills provide for the division of one’s estate following death. Here in Florida strict estate laws must be followed in order to create a legally binding will. As a result, will construction should be left in the hands of a trained, professionally licensed Florida attorney who possesses the necessary legal acumen and experience to draft a will that provides significant protections for your family upon your death.
When clients come to the Miami Law Offices of Albert Gurevich for will drafting services, they typically have two main questions regarding what their attorney can or cannot do when it comes to the drafting and enactment of their will. These people wonder whether their attorney can serve as a witness for their will, and also want to know if it is legally acceptable to leave a gift to their attorney within their will?
Florida state law requires that all valid wills must be in writing and signed by the testator (the one commissioning the will) and then signed by two witnesses. There are very specific requirements governing will witnesses. The testator cannot be a witness, and both witnesses must sign the final will in the presence of both the testator and the other witness. A will is considered finalized upon the signing of the will by the testator and the two witnesses.
For the sake of simplicity, and in order to save time, many clients ask if their Miami estate attorney can serve as a witness to their will. Under Florida law, any person that is considered “competent” can be a witness to a will. A competent person is one who is over the age of 18, who is of “sound mind” Sound mind is interpreted as meaning any person who has not been declared incompetent in any previous legal proceeding. Thus, as long as your attorney is not found to be incompetent, he or she can serve as a witness to your will.
In Miami, an attorney should only be a witness to a will if they are a “disinterested party.” A will won’t be held invalid because it is witnessed by an interested party. However, following this rule of practice could prevent your will from being challenged in probate court. Interested parties include the testator’s heirs, spouses, children, creditors, devisees and anyone else who possesses a claim against or property right in the estate underlying the will in question. A disinterested party typically includes one who is not a beneficiary to a will. A beneficiary is one who is granted a gift, or other bequeath from the will in question. Thus, though it is sometimes frowned upon for an attorney to a will to also serve as a witness, this is a completely valid legal practice.
However, a gift to an estate attorney who made your will could potentially be held void. A gift to your attorney would turn that person into a beneficiary under your will, and thus an interested party. Under Florida law a gift made to an attorney that is also a witness to a will is void if that same attorney played a preparatory or supervisory role in the execution of the will, or is shown to have solicited the gift in question. However, from a technical standpoint a gift to the same attorney/witness will not be void if the lawyer/witness is related to the testator. A person is consider “related” to the testator if when that attorney prepared and/or supervised the execution of the will and/or solicited the gift, the attorney was:
1) The testator’s spouse;
2) The testator’s sibling;
3) A direct lineal descendant or ascendant of the testator; OR
4) A relative of the testator’s spouse and a close, familial relationship exists between the testator and the lawyer;
Will’s are complicated devices, the preparation of which should be left to a licensed Miami estate lawyer. Your attorney can legally be a witness to your will, and can even receive a bequest from your will if they are considered a relative under Florida probate law.
If you need a disinterested attorney to make a will, you can call the Law Offices of Albert Gurevich at (786) 522-1411.