3 Little Known Facts About Wills

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The Last Will and Testament has been used as an estate planning document for centuries. In fact, Wills are often the first – and only – document people think of when they think about estate planning. Most people know about Wills from books, news about Will contests and celebrity estates, movies, and television shows. As common as they are, though, there are some little known facts about Wills.

Little Known Fact #1:

You usually need the original Will for probate.

Let’s say your loved one dies, and you can only find your copy of their Last Will and Testament. Can you have this copy admitted to probate? When the original Will is missing, it is usually assumed that the testator destroyed the Will. A judge may find that the copy is not admissible.

However, the law also provides a way for probating lost or destroyed Wills. Florida Statutes Section 733.207 states that an estate may be probated if:

  • the Will’s contents can be proven by two disinterested witnesses if no copy of the Will is available, or
  • a correct copy is available that can be proven by the testimony of one disinterested witness.

A disinterested witness, by the way, is someone who has no personal interest in the estate. For example, an heir who expects to receive something from the estate cannot be a disinterested witness.

The best practice for dealing with your Will is to put it in a safe place and make sure your personal representative or family members know where it is kept.

Little Known Fact #2:

Your out-of-state Will may not work if you live in Florida at the time of death.

States enact their own laws, and often those laws conflict with the laws enacted by other states. However, Florida law generally considers an out-of-state Will to be valid if it was valid under the laws of the state in which it was executed. For example, if you make a valid Pennsylvania Will, then move to Florida, it’s possible the Will might be accepted into probate.

But why take that chance?

It is still important to have your estate plan reviewed when  you move from state to state. This is especially true if you have business or property interests in more than one state.

Little Known Fact #3:

Your Will can be amended or revoked.

Some people feel that they can write a Will and never have to change it. Failing to review and amend your Will periodically can lead to trouble. For example, probate may be difficult and expensive if the testator left behind a Will that failed to address major life events.

Florida law addresses how the Will may be amended or revoked:

  • In Writing: The testator who made the original Will may write a new Will or write a codicil. The new Will usually states that it replaces all previous Wills. On the other hand, a codicil is a document that explains, modifies, or adds to the original Will.
  • By Act: The testator can revoke a Will or codicil by “burning, tearing, canceling, defacing, obliterating, or destroying” the document for the purpose of revoking it. In other words, if Bill accidentally spills coffee on his Will, the Will should stand. If he rips up the Will, throwing the fragments in the fireplace while stating he no longer wants to use the Will, then the Will is revoked.

Talk to an Attorney About Your Will

Attorney John Mangan is board certified in Wills, Trusts & Estates by the Florida Bar. Please call us at 772-324-9050 or use our Contact Form to set up an appointment. We help clients throughout Florida, including Stuart, Palm City, Hobe Sound, Jupiter, and Port St. Lucie.