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Does an attorney have to be present at the signing of a will?

Saint Petersburg, FL |

My grandmother recently had to redraft her will due to a passing member of the family. The previous will released all property/money to my uncle and mother in the case of death, but my uncle passed and for fear of his wife benefitting from her death my grandmother wanted to get the will changed to leave everything stictly to my mother. Online we were able to download a template which very much resembles her previous will but this time she could not afford for a lawyer to help her complete it. We downloaded the template, completed the will and had a family friend who is a notary public witness myself and my girlfriend sign the will as "Witnesses" as well as witnessed my grandmother sign the will. After which , the will was signed & stamped by the notary public. Is this acceptable?

Attorney Answers 8

  1. No, there's no legal requirement that an attorney be present when a will is signed. The attorneys usually make their money when they have to sort out the mess created by people who download online templates and try to plan this sort of thing without knowing what they are doing.

    Don't take anything written here as legal advice.I am happy to offer my thoughts free of charge, and I would welcome the opportunity to speak with you about representing you. Please be aware, though, that at this point we have not established an attorney-client relationship. An attorney client relationship requires me to agree in writing to represent you. Unless that happens, you shouldn’t take anything I say to be legal advice or make any decisions based on it.

  2. The "online wills" are pretty generic and we do not recommend them at all. In Florida, it is best to use a self proving affidavit so that when the Will is filed for probate, witnesses do not have to appear to authenticate the Will. If there are family members (such as your uncle's children) who may want to contest the Will once it is filed for probate, the facts that you assisted your grandmother in preparing her will and you and your girlfriend served as witness, could pose problems if potential heirs claim "undue influence." Also, it depends on your grandmother's frame of mind - does she suffer from dementia? Procedurally, two witnesses and a notary are sufficient in Florida - so long as the notary is not aone of the witnesses.

  3. First, I am a NY attorney and cannot advise you as to your state's laws, but I can provide certain general information that may be helpful to you. Now, I will steer clear of addressing whether there was any need whatsoever to "redraft" the will, because that is not your question and because I don't know precisely what the will said.

    Turning to the "template which very much resembles her previous will," there is much more that need be said. I doubt that your state has any requirement that an attorney be present at a will-signing. But the lack of any such requirement does not change the fact that the way you proceeded is decidedly unwise.

    That the template you downloaded from the internet closely resembles (at least in your view) the previous will is really an absolutely irrelevant statement. You clearly have no training in will-drafting nor in law. So your notion as to the close resemblance of one document to another is (excuse my bluntness) absolutely ridiculous, pointless, and irresponsible. To the uninitiated, a used Chevy and a new Aston Martin (which costs at least 10 times the price of the Chevy) may be stated as very much resembling one another.

    You've asked two questions. The first (whether an attorney must be present at the will-signing) we have already dealt with. Let's move on to your second question ("Is this acceptable?"). No, it's not acceptable. Nor is it wise or prudent.

    You say your grandmother could not afford an attorney to help her redraft the will. Maybe you, your girlfriend, your family friend who is a notary, and your mother could have chipped in to help out your grandmother. Or maybe you could have simply minded your own business and left the will alone. You may not have helped your grandmother at all. And you may not have helped your mother at all.

    Good luck to you. (Luck, by the way, is no substitute for skill, knowledge, or ability).

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

  4. Typically you do not want any family member as a witness to the Will, although having one will not invalidate the document.

    It sounds like your grandmother didn't need a new will but rather a codicil also known as an amendment. Depending on the language of her original Will, it may not have been necessary to make any changes. It would be unusual for your uncle's wife to get his inheritance, usually it would pass to your uncle's children, if any. Again, the Will would have to be reviewed to know for sure.

    If you haven't destroyed the original Will, I recommend going to an attorney to have it reviewed and discuss how the passing of your uncle will effect it. FL Statute 732.511 allows for the republication of a revoked Will by codicil or reexecution. Without reviewing the new Will it is difficult to say whether or not it is a valid Will. It would be best to have a Will that has been drafted by an attorney to ensure it contains the necessary provisions and proper execution.

    Contact a local estate attorney to assist you in reviewing either or both documents.

    Answer does not constitute legal advice. Please call my office, (727) 471-0039 or contact me at, if you would like to discuss your Florida legal matter further. This answer is provided for informational and/or educational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Adam is a Florida Attorney practicing in areas of Estate Planning, Elder Law, Trusts, Probate, Guardianship, and Business Law. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

  5. I agree with the other attorneys who have posted here. While there is no requirement of having an attorney prepare or be present at the execution of a will, most will contests that I have dealt with involve a family member preparing and/or assisting in the execution. Using an experienced estate attorney is the best way to prevent issues which are not otherwise evident until after the testator has died and cannot change the will.

  6. Attorney Rauman has given you good advice. If nothing else, your grandmother should contact her local Bar Association Lawyer Referral Service to set up a low cost consultation to see if her documents will accomplish what she wants.

  7. A Last Will and Testament can be valid in Florida when executed by two witnesses and a notary public, all within the same room as the person creating the Will, however there are several other requirements to ensure proper execution. You should be very careful when executing a Will without an attorney, as if the person witnessing has an interest in the Will, it could be contested and ultimately thrown out. Unfortuneatly it is not as simple as just signing the Will and you really do want to have an experienced Attorney there to assist you in making sure your Will is valid.

  8. No-but an attorney( or staff) that prepares the will should be present to explain the will and supervise the execution of the will.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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