Wills Need Witnesses

Once upon a time, Cinderella had two loving parents, her mother and her father.  Sadly, her mother died, so Cinderella got her dad to write a new will leaving everything to her, but she did not get it witnessed and guess what?  When Cinderella’s dad died, everything went to his new wife, Mrs. Wicked Stepmother. You can write a will on toilet paper, but you have to have it properly signed.  The most important thing about a will is to make sure it is executed properly.  In Florida, a will can be typed or handwritten, but in order for it to be valid, it must be signed in front of two witnesses who sign in the presence of each other.  (This rules out video or sound-recorded wills.)  A notary public can join in to make the will “Self-Proving,” meaning the validity of the witnesses should not be challenged when it is time to admit the will to probate. Where there is a will…I want to be in it!  A will lets you control how your assets are distributed once you assume room temperature, but depending on your circumstances, you may not need one. Seek competent legal counsel to discuss whether […] Read More

Does A Commercial Lease Have To Be Witnessed?

Commercial leases are usually for more than one year.  They are typically longer than residential leases because of build-out expenses (which you do not normally have with residential leases).  So, does a commercial lease have to be witnessed? Yes.  According to the Statute of Frauds, if an agreement is for more than one year it has to be witnessed…but it does not have to be notarized. You may want legal counsel to help ensure you get what you think you are getting in a contract, and also so that the agreement is properly executed and enforceable.   Read More

Standing & Foreclosing on Solid Ground

If the lenders and loan servicers have done their jobs right, what is a foreclosure defense attorney going to say?  In many cases, lenders and loan servicers have left room for conversation about alternatives to foreclosure. Private lenders usually do not sell their loans; whereas, with institutional lenders, the servicing of a loan gets transferred.  The biggest issue we have with these institutional lenders is standing.  There is no personal knowledge of the loan, so the servicer must rely on business records to prove their case.  If they only have records from the time they have been servicing the loan, then their standing to foreclose on the property comes into question. There should be no doubt about the facts in a foreclosure summary judgment hearing.  Very often lenders or loan servicers are unprepared to prove their authority to foreclosure because they lack witnesses and proper business records…but very often these lenders and loan servicers prevail because most homeowners do not put a legal defense. A Foreclosure Defense is not a denial of debt, but it asks the other side to prove their case…and in the meantime gives the homeowner an opportunity to pursue an alternative to foreclosure, an outcome towards […] Read More

Notes on Notarization

Why notarize?  Answer:  For Recordation. Oops, my husband already signed this, can you notarize it?  Answer:  Notaries violate their oath if they notarize something without seeing the person sign it.  Is it done?  Of course it is done.  A lot of things are done.  That does not make it not a crime. If I get an agreement notarized that makes it legal, right?  Just because you have an agreement notarized does not necessarily make it legal (just like printing an agreement on legal-size paper does not necessarily make it a legal document). A notary has to see the person sign the document in order to notarize the signature.  If it is a will, however, that is different.  In Florida, a will has to have two witnesses who see the person sign the will and see each other sign as witnesses—all of them have to be in the same room.  The reason to have a will notarized is to make it self-proving, then the validity of the witnesses will not be challenged later in probate.   Read More

Match-Making in Will Execution

The most important thing about a will is to make sure it is executed properly.  In Florida, that means that in order for the will to be valid, it must be signed in front of two witnesses who sign in the presence of each other.  (This rules out video or sound-recorded wills.)  So does it make a difference who the two witnesses are?  What if you willed everything to the two witnesses who sign? That may not make a difference in the validity, but it will make a difference in who is going to argue…and it is the arguing that costs money. You may want to select two witnesses who have no dog in the fight.  Furthermore, you can have a notary public can join in to make the will “Self-Proving,” meaning the validity of the witnesses should not be challenged when it is time to admit the will to probate.   Note:  This question came up recently on our radio show, “Land Title Talk.”  Our next broadcast is September 5th from 8 to 9 in the morning on 102.3 FM WFOY  http://www.1023newsradio.com.  You are welcome to call in with your legal or real estate-related questions during our airtime. Read More