Florida Probate Statute 733.205: Probate of Notarial Will

A last will and testament, when properly executed, is legally enforceable document that gives instructions as to what should happen to the testator’s property once he (or she) passes away. There are different types of wills, including a notarial will. A notarial will is one that was dictated and taken down by a notary. Under Florida law, there are special rules that must be followed in order for a notarial will to be admitted to probate by a Florida court. To learn more about the process of creating a will and probating a will, including the requirements of Florida Statutes, section 733.205- Probate of notarial will, contact a skilled Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates.

In order for a court to admit a will to be probate, it must be properly executed. The requirements are as follows:

• The will must be in writing. Florida will not admit an oral will to probate.
• The testator must sign the will, or the will must be signed by another person at the direction of the testator and in the presence of the testator.
• At least 2 witnesses must be present to see the testator sign the will.

A notarial will is a will that is created by or under the supervision of a civil notary. The notary also retains custody of the original will to ensure that the original will is always available and cannot be lost or destroyed. The notary or the depository of the notary’s records can provide certified copies of the will when necessary. However, the original will remains with the notary except upon order of the court. As an experienced Fort Lauderdale probate attorney will explain, while generally Florida requires that the original copy of will be filed with the probate court, along with the petition for probate, there is an exception to this general rule for notarial wills. Under FL. Stat, section 733.205- Probate of notarial will, a notarial will allows an authenticated copy of a notarial will from another jurisdiction to be probate in Florida if the original of that will could have been admitted to probate in Florida. This means that the will would have to have been valid under Florida’s law. The will must have been signed by the testator in the presence of at least two witnessed who also signed the will. The notarial will exception only provides an exception for the filing of the original of the will. All requirements for a valid will remain.

If the probate court refuses to admit a will to probate because it was not properly executed or for any other reason, then the decedent’s estate will be distributed based on Florida’s intestate succession statute. Under the intestacy rules, if an intestate decedent is survived by a spouse and no living descendants, the spouse would be entitled to the decedent’s entire estate. If your spouse is also deceased, then the entirety of your estate passes to your living descendants. If you have no spouse or surviving descendants, your estate passes to your parents in equal shares. If your parents have passed, your estate is then split equally between your surviving siblings or their direct descendants. If the decedent passes away without leaving a spouse, descendants, siblings, or parents, then his or her estate will be distributed to other living relatives based on an order for priority stated in the statute. To learn more about Florida’s rules of intestate succession, contact an experienced probate lawyer in Fort Lauderdale.

1. Probate of a will written in a foreign language : § 733.204, Fla. Stat.
2. Probate of will of resident after foreign probate : § 733.206, Fla. Stat.
3. Establishment and probate of lost or destroyed will : § 733.207, Fla. Stat.
4. Discovery of later will : § 733.208, Fla. Stat.

(1) When a copy of a notarial will in the possession of a notary entitled to its custody in a foreign state or country, the laws of which state or country require that the will remain in the custody of the notary, duly authenticated by the notary, whose official position, signature, and seal of office are further authenticated by an American consul, vice consul, or other American consular officer within whose jurisdiction the notary is a resident, or whose official position, signature, and seal of office have been authenticated according to the requirements of the Hague Convention of 1961, is presented to the court, it may be admitted to probate if the original could have been admitted to probate in this state.

(2) The duly authenticated copy shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with subsection (1).

(3) Any interested person may oppose the probate of such a notarial will or may petition for revocation of probate of such a notarial will, as in the original probate of a will in this state.

If a last will and testament is not properly executed, the Florida probate court will not allow it to be probated. Instead, the court will require that the decedent’s assets to be distributed according to the intestacy rules. This is not the optimal result. If you have questions related to probating a will, including the requirements of Florida Statutes, section 733.205- Probate of notarial will contact a skilled probate attorney at the Law Offices of Stephen Bilkis & Associates. We have over two decades years of experience representing clients in matters related to probate, estate administration, and estate litigation, and understand the intricacies of the Florida Probate Code. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.