Question: My wife and I are in our 70s and recently moved from Illinois to Florida to live out our remaining years in retirement. It’s been more than 10 years since we last had our Wills updated. Is it necessary for us to have our Wills re-done now that we have moved to Florida? Also, what is a “Self-Proving Affidavit”, and should we make sure that our new Wills contain one of these?
Answer: It would be best to have your wills redone now that you are Florida residents. First off, the witnesses on your Illinois wills may not be around to verify your signatures should your wills be presented to a Florida court for probate. Many years ago, I had to track down out-of-state witnesses to verify that the wills were properly signed and witnessed. This could lead to a commissioner being appointed (usually someone from the probate court in Illinois) to take the sworn affidavit from one of the Illinois witnesses that the will is actually the will that you signed. This adds additional time to the probate of your will and additional cost that would be better off to eliminate. Second, there may be additional changes that you may wish or need to make to cover any change in circumstances (additional children, grandchildren, special needs, etc.) that didn’t exist at the time of drafting and signing your Illinois. Third, the personal representative and alternates that you named in your Illinois will may not be able to serve in the state of Florida. Florida permits any Florida resident to serve as your personal representative as well as certain non-residents because they are designated family members.
Virtually all Florida wills have a Self-Proving Affidavit attached to them. The Self-proving Affidavit is an additional page in which the will maker identifies the will as his own and the witnesses again identify the will as the document they saw you sign in their presence. The signatures of the will maker and each of the witnesses is again notarized. The self-proving affidavit makes it unnecessary for the witnesses to appear in court to verify the signature of the will maker and the court will accept the will on its face.
Ivan Michael Tucker, Esq.
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida
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