Florida Estate Planning Document Signing Requirements
Preparing Florida Estate Planning and Medicaid Planning Documents is important. But, even the most well-thought out and detailed trust can be rendered pointless if its not properly signed and executed. Different Florida legal documents have different signing, initialing, witness and notarization requirements.
I hope this Florida document signing guide, provides you with some clarity with some of the more common documents that you should have prepared by a Florida estate planning attorney.
For each document listed below, I’ll indicate whether a notary is required, whether witnesses are required (if so, I’ll indicate whether there are any limitations on who can serve as a witness), and I’ll cite the Florida statute where you can see corresponding law yourself (which are, of course, subject to change). Note that minor children cannot sign any of these documents (as signor or witness).
I also want to point out that this article only pertains to Florida. Other states have different signing requirements.
The Ideal Estate Planning Document Signing Arrangement
While not always required, a good general rule of thumb is to have Florida estate planning documents signed by four people all in the same room at the same time:
- The signor / principal +
- Disinterested / independent / non-related witnesses #1 +
- Disinterested / independent / non-related witnesses #2 +
- One separate disinterested / independent / non-related notary.
This is not always possible, but is always the best signing arrangement for nearly all these documents.
Florida Power of Attorney Document Signing Requirements
Must be signed in front of two witnesses and a notary.
Florida Health Care Surrogate Designation Signing Instructions
Must be signed in front of two witnesses. At least one witness cannot be a spouse or blood relative. The surrogate may not sign as witness. A notary is not required.
Florida Living Will Document Signing Requirements
Your Living Will must be signed in front of two witnesses. At least one witness cannot be a spouse or blood relative.
Make sure you don’t confuse the Living Will with the Last Will & Testament (here is a video explaining the differences between a Living Will and Last Will in Florida).
Florida Last Will & Testament Document Signing Instructions
Your Will must be signed in front of two witnesses (ideally, to avoid later conflict, we recommend that no one named in the document should serve as a witness, but this is not, strictly-speaking, required) in front of the testator and each other. A notary is not required to make a valid Will in Florida.
However, our firm does not draft Last Wills without an accompanying Self-Proving Affidavit, which does require a notary. A self-proving affidavit essentially serves to “prove” the Will is valid without requiring the testimony of the witnesses in probate court. The self-proving affidavit would be signed by the testator in front of the same two witnesses who sign the actual Will and then a separate notary.
Self-Proving Affidavits require the notarization of the witnesses signatures which precludes the notary from signing as an actual witness (since they cannot notarize themselves as witness).
Revocable Living Trust / Revocable Trust / Living Trust Execution Requirements
Revocable Trusts, Living Trusts, and Revocable Living Trusts are all terms that mean the same exact thing. Interestingly, these trusts only need the grantor or settlor to sign in front of two witnesses. While a notary is not required, almost every estate planning attorney I know (including our firm) will require trusts that we draft to be signed in front of an independent notary as well. However, in a pinch (perhaps in a hospital or nursing facility where it might be difficult to find a notary) only the two witnesses are, strictly speaking, needed to make a legally valid revocable trust.
Some final thoughts
Except for the Last Will & Testament, the notary can also serve as one of the witnesses on these other estate planning documents. The issue is that some documents (such as the self-proving affidavit section of a Last Will) require the notary to verify the identity of the witnesses in addition to the principal signing the doc and it is illegal for the notary to verify their own identity. For other documents, the notary is simply verifying the identity of the principal and verifying that the principal signed in the presence of witnesses.
However, as they say, "just because you can, doesn't mean you should."
As explained above in the Ideal Estate Planning Document Signing Setup, it is always better, even though not always required, to have the witnesses and notary be separate and independent - all signing along with the signor in the same room. This reduces the chances of the document's validity being challenged or anyone being accused of undue influence.
