In this blog post I will cover what are holographic wills and whether they are valid in the State of Florida. Florida does not recognize holographic wills unless they are executed according to Florida law. However, there is always an exception to the rule, keep reading to find out more.
Simply stated, a holographic will is a Will written in your own handwriting. You as the testator, take down a piece of paper and write what you want to happen with your assets when you pass away and then sign it at the end.
Florida does not recognize holographic wills under any circumstance, even if validly executed in another State or country.
Another circumstance that I see a lot is when you have already created your last will and testament and you want to make changes to it. From my experience, a lot of people tend to cross out or add information to the last will and testament in their own handwriting. However, this is also not valid and it is also considered to be a holographic will.
From this situation what will ultimately happen in the Florida probate court is that your last will and testament will be admitted disregarding all the changes you made with your own handwriting.
The proper to amend or add changes to your will is by creating a codicil. A codicil is an amendment to the last will and testament and must be executed according to Florida law.
Section 732.502 of the Florida Statutes states that every will must be in writing. This means that Florida will also not accept any oral wills. Your intent expressed orally will not be recognized in Florida and your assets will pass according to Florida law.
In order for a last will and testament to be valid in Florida, it must be a) signed at the end by you; and b) signed in the presence of two attesting witnesses.
Section 732.502(2) goes on to say that if a holographic will is executed with the formalities of a will as described in the previous sentence, it will not be considered to be a holographic will and will be valid in the State of Florida.
First of all, they are invalid under Florida law and they will not be recognized unless they are validly executed. Holographic wills are created in situations where you are in your “death bed” and you want to put something in writing as to your wishes.
Second, there can be a lot of ambiguity when you create your own last will and testament. You may not put your clear intentions in writing and will create litigation at the time of admitting your last will and testament. Proper drafting a Will takes art, covering all contingencies, and making sure you cover all the situations.
Third, your witnesses to your handwriting will need to be reproduced when your handwritten last will and testament is introduced to the Florida probate court. Typically, we avoid this by executing a self-proving affidavit which is properly notarized.
Lastly, you may not list all your assets or the assets you list are not subject to being probated. Similarly, you may run afoul of the Florida homestead law and invalidly devise your homestead.
Holographic wills are invalid in Florida and therefore your assets will pass according to the Florida Intestacy Statute. Your assets located in the State of Florida will pass by the Florida Intestacy Statute even if you validly executed your holographic will in another State that allows holographic wills and then you later move to Florida.
The Florida Intestacy Statute provides a list of preference as to the distribution.
First person to inherit is your surviving spouse. If you have no children, your surviving spouse will get everything. If you have children, but all your children are from the same marriage, then your surviving spouse will also get everything.
If you have children from a different marriage then your spouse gets 50% and your children get the remaining 50%. Lastly, if the children are from the same marriage, and your surviving spouse has children from a separate marriage, then your surviving spouse will get 50% and your children will get the remaining 50%.
If you are not married, then your children get everything in equal parts. If one of your children predeceases you, then their children will inherit on their behalf.
If there are no children or grandkids, then the Intestacy Statute moves to your parents. If your parents are not alive, then it will move to your brothers and sisters, or the descendants of your brother and sister.
The Intestacy Statute goes on and list more individuals if at this point none of the foregoing individuals exist. Finally, if there is nobody that applies, meaning you have no family at all, the property will escheat (transfer) to the State of Florida.
If you want to avoid all the uncertainties of handwritten wills, the best way to go is to speak to an estate planning attorney. You have worked very hard for your assets and you don’t want them to go to unintended beneficiaries.
The cost of creating a proper estate plan is minimal compared to improperly drafting your handwritten will.
First consultation with the estate planning attorney is FREE. Mention that you read this blog post and we will gladly honor a 15% discount on any last will and testament or estate plan you create.
Call today (305) 489-1415 or email office@alainromanlaw.com.