Signing Requirements for Florida Estate Planning Documents
Preparing Florida Estate Planning and Medicaid planning Documents is important. But even the most well-thought out and detailed document can be rendered pointless if it is not properly signed and executed. Different Florida legal documents have different signing, initialing, witness and notarization requirements. This article only pertains to Florida. Other states have different signing requirements.
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While not always required, a good general rule of thumb is to have Florida estate planning documents signed by four people all in the same room at the same time:
1. The signer
2. Disinterested, independent, non-related witness #1
3. Disinterested, independent, non-related witness #2
4. One separate disinterested, independent, non-related notary public
This is not always possible, but it is always the gold-standard signing arrangement for nearly all documents.
Florida Power of Attorney Signing Requirements:
Must be signed in front of two witnesses and a notary (Florida Statutes Section 709.2105)
Florida Health Care Directive or Living Will
Must be signed in front of two witnesses. At least one witness cannot be a spouse or blood relative. A notary is not required. (Florida Statutes Sections 765.202 and 765.302)
Florida Last Will and Testament Document Signing Requirements
Your Will must be signed in front of two witnesses who each sign in front of the testator and each other. A notary is not required to make a valid will in Florida. However, the preference to have a “self-proving” Will requires notarization. With a self-proved will, you can avoid the necessity of tracking down the original witness in order to “prove” the will is valid; hence “self-proving.” Since the Will may not be probated for years or decades after signing, it can be hazardous to rely on tracking down the witnesses at some future date when they may have moved away or died. Therefore, in our office we always include a self-proving affidavit. It would be signed by the testator in front of the same two witnesses who sign the Will and then a notary public.
Self-Proving Affidavits require the notarization of the witnesses’ signatures which preclude the notary from signing as an actual witness (since they cannot notarize their own signature.) (Florida Statutes Section 732.502-732.504).
Revocable Living Trust Execution Requirements
Revocable Trusts need only the grantor or settlor to sign in front of two witnesses. While a notary is not required, almost every estate planning attorney in Florida (including our firm) will require trusts that we draft to be signed in front of an independent notary as well. However, in a pinch (perhaps in a nursing facility where it might be difficult to find a notary) only the two witnesses are, strictly speaking, needed to make a legally valid revocable trust. (Florida Statutes Section 736.0403(2)(b).
Our Approach to Document Formalities
At Burzynski Elder Law, we make every effort to get our clients the best documents possible for their needs. We have a separate “design meeting” which can only be attended by one of our attorneys and the principals/eventual signers of the documents. Sometimes we get requests to include an adult child or a good friend attend the design meeting. We will not do so, because that opens the documents to a potential challenge of undue influence (by the non-signer.) It also destroys attorney-client privilege because the matters are discussed in front of an outside party. During the design meeting we will go over various choices you have in how to structure the various documents and still comply with Florida law.
After the design meeting, our paralegals will prepare drafts, which are then reviewed by one of the attorneys. Afterwards the drafts are forwarded to the client for review. Simple corrections (such as a name misspelled) can be communicated through our staff. Legal questions can be addressed by a follow-up discussion with one of the attorneys (which may be in person or by phone or zoom). Once the client has given their approval of the final draft, a signing appointment is scheduled to include the two separate, non-related witnesses and a separate, non-related notary. At the end of it all, our goal is for our clients to have “Fifty-states” documents, which means the formalities would comply with rules of any other state the client might move to.
If you need a good, current set of Florida estate planning documents, call us at 239-434-8557 to begin your legal planning process.