Q: Is my mom's will valid?
We received a notice that my mom’s will could not be approved because, “A witness to the will has the same last name as the notary. If the relationship is one enumerated in Fla. Stat. 117.107 (11), the will is not self -proving. Fla. Stat. §§732.502, 733.201(1), 732.503; Fla. Prob. R. 5.210, 5230. If they are not related or it is not one of the relationships enumerated, an affidavit to that effect is required.”
My mom's will required two witnesses. One was a friend and the other was the wife of the notary. Neither are related to my mom. So is the will valid or not?
A:
It appears that your mother's will is valid but it is not self-proving. The issue is not that the witness was or was not related to your mother. The issue is that the witness was related to the notary. The Florida Notary statute clearly states that a notary cannot notarize the signature of a spouse or other close relative, and regarding a will, the notary is not only notarizing the signature of the signer of the will but also the witnesses to the will.
Therefore, what will need to happen to allow the Court to admit the will to probate (make it admissible in court) is for one of the witnesses to sign an oath of witness to will. This is a specific form that you may be able to find online; otherwise, you will need to hire an attorney to help you. This oath of witness to will needs to be signed in front of the clerk of court and then filed in the case. If the witness is not local, they can sign this form in front of a clerk of court in their county and then send this form to you to file with the clerk of court in the county where the probate is taking place.
If you are unable to figure this out on your own, you will need to retain an attorney to help you handle this estate. Our office handles estates anywhere in Florida. You are welcome to call our office for a free 15 minute phone consultation. We offer flat fees for summary administration.
Terrence H Thorgaard agrees with this answer
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