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Can a will be admitted to probate in a Florida sunmmary administration where one witness has died, the second cannot be found

Asked over 2 years ago - Fort Lauderdale, FL

and the third cannot remember anything about the decedent or the execution of the will and refuses to sign an oath. The will was executed over 32 years ago. I am the sole living heir of the deceased as well as the sole beneficiary under the will so I am considering filing the summary administration as intestate. However, there is a valid will and I would prefer to file as testate with a copy of the will and an affidavit from me as a nominated personal representative under the will stating that the will is the true last will of the decedent and explaining the situation of the witnesses. Can I do this?

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Attorney answers (3)

Douglas Ron Coenson

Reputation Level 14

Answered over 2 years ago. Probate Attorney in Jupiter, FL.

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As long as the will was validly executed, you can admit the will. The situation involving the witnesses will only become an issue if someone contests the validity of the will.

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Marc Jeremy Soss

Reputation Level 11

Answered over 2 years ago. Probate Attorney in Sarasota, FL.

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If the Will was validly executed, I presume you are missing the attestation clause. That being said, since it was a properly executed will you can submit it as a "valid" will and ask for Summary Administration. I would also recommend that you explain the situation to the Judge in your pleadings (assuming there is no attestation clause) and explain that the estate would be administered the same whether Testate or Intestate.

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Jeffrey Scott Goethe

Reputation Level 13

Answered over 2 years ago. Probate Attorney in Bradenton, FL.

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Rule 5.530(c) of the Florida Probate Rules requires that "the decedent's will shall be proved and admitted to probate." This means the will must be "self-proving" or a witness must sign an oath to be presented to the court.

If the will contains the signature of the person making the will and two witnesses, and a "self-proving affidavit", you don't need to locate the witnesses. The self-proving affidavit includes an additoinal signature of the person making the will and the two witnesses, and a notary. Whether the will is self-proving depends upon the law of the statee where the will was signed. If the will was signed in Florida, section 732.503 shows the form that should be followed.
If the will is not self-proving, Section 733.201(3) permits the personal represetnative nominated in the will sign "prove" the will by signing an oath that he or she believes that the will being filed is the true last will and testament of the decedent.

Although Florida law does not require an attorney if you are truly the only beneficiary under the will, you will probably find that you don't get any help from the clerk's office. They cannot give you legal advice. Many attorneys charge a lower fee for summary administrations, so you should seriously consider seeing an attorney to review your situation. Also, summary administration is available only if the decedent died more than two years ago, or the assets that need to be probated are less than $75,000 in value. We have seen many cases where the assets were less than $75,000, but the particular type of asset could not be handled with the summary administration procedures. Without a full discussion of the circumstances of your situation, I can't say that summary administration is appropriate.

I hope this helps.

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