An invalid will can cause serious problems for your heirs and family when it comes time for probate. That’s why today we’re going to take some time to focus on the concept of an invalid will including what makes a will invalid and what kind of problems can result from a will being deemed invalid by the probate courts.
Invalid Will: What Makes a Will Invalid and What Are the Repercussions
We have talked a lot recently about probate court and what happens in the probate court when you are asked to act as the executor of the estate and the general workings of the court itself. Today, however, we want to talk about the concept of the invalid will.
What is an Invalid Will?
When we refer to a will being invalid it means that the will that we are looking at is not a legally sound document.
When writing a will, that will must be written in accordance with specific state laws. Any will that does not meet the legal criteria necessary to be considered a valid document will not be adhered to in probate court.
What Makes a Will Invalid in Florida?
Each state and probate court has its own regulations and requirements for a will to be considered valid. Since Weidner Law is a Florida probate attorney group we’re going to focus on the criteria of a legal Florida last will and testament.
So, what is it that makes a last will and testament an invalid document in the state of Florida?
- A last will and testament must be “written” – it may not be spoken such as may occur if the individual is a soldier and knows that they are about to die.
- The will may not be “holographic” or entirely written by hand and signed by the deceased author.
- The will must be signed at the end by the testator (the individual writing the will) or by someone else signing for the testator as directed by the testator in the presence of the testator.
- The will must also be signed by two witnesses who witnessed the testator signing the document or someone signing for the testator on the author’s behalf. These witnesses must be aged 18 or older.
- The individual creating and signing the will (the testator) must be of sound mind and not under any undue influence at the time of signing the will.
- The will must not be proven to be fraudulent.
It is also recommended that a will contain a self-proving affidavit that should be signed by the testator in the presence of the two witnesses mentioned above. This signature process should be done in the presence of a notary public. The purpose of the self-proving affidavit is to avoid the witnesses of the will signing having to come to probate court to sign the oath of witness to the will when the testator passes away.
Can I Contest a Will As Being Invalid?
In Florida, a last will and testament can be challenged for invalidity during the probate process. In order to challenge the will, you must file a Petition for the Revocation of Probate with the court. Currently, Florida law allows you to petition the validity of a will if you are the spouse or children of the deceased, an heir named in the will, or if you were named in a previous will that was terminated or modified.
What Happens When the Probate Court Deems a Will Invalid?
In a case where the probate court deems a last will and testament to be invalid the consequence will depend upon why the will was found to be invalid. For example, if undue influence was in play and found to be a reason for invalidating the will, the will would be deemed invalid and the individual responsible will likely be subjected to investigation.
When a will is deemed to be invalid, the probate court will dismiss the invalid will and one of two things may happen.
- If there is a previous version of the will that is considered to be valid, the court may deem this will to be the valid will.
- If a previous version of the will is not present, the probate court will handle the estate as an intestate case (a case where no will is present at the time of death).
What Does Intestate Mean in the State of Florida?
When we talk about an intestate estate, we are talking about the courts handling the estate as though no will was present. In the state of Florida, this means that assets of the estate are distributed according to the following distribution schedule:
- A surviving spouse of the decedent receives the entire estate if the decedent has no surviving lineal descendants (children, grandchildren, great-grandchildren, etc).
- A surviving spouse of the decedent will also receive the entire estate if the decedent had descendants that are also descendants of the surviving spouse and neither the decedent nor the surviving spouse had any other children.
- If the decedent is survived by both a spouse and lineal descendants and any of the lineal descendants is not also a descendant of the spouse, then the spouse is entitled to one half of the estate, and the descendants share the balance, per stirpes.
- If there are lineal descendants but no surviving spouse, then the estate is shared by the lineal descendants.
- If there is no surviving spouse and no lineal descendants, then the estate passes to lineal ascendants (parents, grandparents, great-grandparents, etc.) and collateral relatives (siblings, aunts, uncles, etc.). This means that if the decedent’s parents are alive then they are entitled to the estate. If the parents are not alive, then the estate passes to the decedent’s brothers and sisters and their descendants, per stirpes.
- If none of the above heirs survive, then the estate passes to the heirs of the decedent’s grandparents, per stirpes, with one half of the estate going to the decedent’s maternal relatives and one half going to the decedent’s paternal relatives. If there are no relatives on one side, then the entire estate passes to the other side. (Source)
Want to Avoid Having an Invalid Will?
If you’re worried that your last will and testament may be invalid and you live in or around the St Pete, Florida area, Weidner Law can help. Just give us a call today at 727-954-8752 and let us help you to create a valid last will and testament.