This article will explore whether a Florida holographic will is valid under Florida law.
A Florida resident can only create a valid will by a written document that he or she signs in front of two subscribing witnesses.
This means that a handwritten document can be a valid will under the laws of the State of Florida, as long as it meets the formalities required for the execution of wills.
However, a nuncupative will (which is a fancy phrase for oral wills), is never valid in Florida, and will not be admitted to a Florida probate court.
What is a Holographic Will?
A holographic will is a will written entirely in the testator’s own handwriting. However, it is not witnessed (attested) by anyone.
Therefore, a holographic will is not the same thing as a handwritten will.
A couple of dozen states allow the creation of valid holographic wills, not Florida.
Do Florida Courts Recognize a Holographic Will Made in Another State?
A nonresident of Florida can create a holographic will, if it is allowed under the state law of their domicile.
When a resident of another state dies, their estate is probated in the state where they resided. If such a person also owned property in Florida, than the Florida property is also probated in a Florida court. The Florida proceeding is called an ancillary probate.
Generally, an ancillary probate recognizes the decree of distribution from the other state. This means that the Florida probate court disposes the Florida property the same way as in the decedent’s home state.
However, a Florida ancillary probate still requires the admission of the decedent’s will, if the decedent had one. Florida statutes provide that a will can only be admitted to the ancillary probate, if it meets the requirements for a valid will under Florida law. This means that the will must be signed by the testator in front of two witnesses. In addition, the will must also include the two witness signatures.
Therefore, if you own property in Florida, and all you have is a holographic will from another state, your Florida property will pass according to Florida’s laws of intestate succession.
A holographic will is not witnessed, so it is not a valid will under Florida law. Therefore, a valid holographic will from another state will not be admitted as a will in a Florida ancillary probate proceeding.
What happens if a foreign holographic will is not recognized in a Florida ancillary probate?
If you all have is a holographic will from another state, then your Florida probate property will pass according to Florida’s laws of intestate succession.
Florida’s intestacy laws give your property to your spouse, your children or other relatives.
If that is okay with you, then no need to worry. If not, then you need to make sure your will is valid under Florida law, no matter where you make it.*
Do Florida Courts Recognize Handwritten Wills?
A handwritten will that meets Florida’s requirements for a valid will is not a holographic will.
Therefore, Florida courts will recognize a properly executed handwritten will as a valid legal document, even if made in another state.
How Does One Make a Valid Florida Handwritten Will?
A handwritten will should be valid, if it meets the following requirements and good practices:
- You write it entirely in your own handwriting
- It states your full, legal name at the beginning of the document
- It states that this is your last will and testament
- It states that you are revoking all your prior wills
- It states that you are of sound mind
- It states that you are not under undue influence
- It states whether you are single, married, divorced or widowed
- It provides for your spouse, if you are married
- It provides for your minor children, if you have any
- If no spouse or kids, then identifies close family members
- It names a personal representative to handle your affairs
- It has the testator’s signature (your signature) at the end of the will,
- It has a statement from the two attesting witnesses that they saw the testator (you) sign the will, and
- It states that the witnesses signed the will in the presence of the testator (you)
Most wills also end with a self proving affidavit. This makes it easier to admit the will to probate. It is a paragraph that states that the testator signed the document as his last will and testament, and that the testator and the witnesses signed it in the presence of each other. All three people then sign this paragraph in front of a Notary.
Are Handwritten Wills a Good Idea?
Some type of will is almost always a part of the estate planning process. Some of the types of wills people make are a “regular” will, a pour-over will, a sweetheart will, and a will with a testamentary trust.
All of these wills are several pages long. In this day and age, computers and printers are readily available. Even if you don’t have one or the other, you can find them at your local library, for free.
There is just no reason to hand write your own will, since you still have to have it witnessed.
About the only scenario where it would make sense is if there were three people on a sinking boat. Then each of them could handwrite their will, and the other two could be the witnesses.
Therefore, a handwritten will is rarely a good idea.
Summary
Holographic wills are never valid under the Florida Probate Code.
Handwritten wills that meet Florida’s requirements for execution of a will are not holographic wills. Therefore, a handwritten will can be valid in Florida.
*If you own real estate in Florida, but reside in another state, then you should make sure your will is valid under Florida law. In the alternative, you could have that property in a trust, or own it with someone with a right of survivorship. If it is in your name only, and your foreign will is not valid in Florida, then the property will pass according to Florida’s laws of intestacy.
By Steve Harton, an estate planning and probate attorney licensed in Florida, Utah and Wyoming. Steve serves clients in all three states from his office in Rock Springs, Wyoming. If you need some legal advice about Florida wills and estate planning, please schedule a consultation!