When a person dies intestate, the court appoints an executor who decides how to distribute the assets. Planning for your death by creating a will provides instructions for the executor on distributing assets, including specific items or the number of funds each person receives. While you may see people quickly scrawling handwritten wills on TV, don’t be swayed into thinking this is acceptable. Oral wills and holographic wills are not valid in Florida. All handwritten wills must meet specific standards to be legitimate.
Learn about the different types of wills and what Florida requires for them to be valid in this guide.
Last Will and Testament
Over 40% of U.S. citizens without a will say it would take health concerns or a medical diagnosis to motivate them to create one. The problem is if you wait until you are sick, it may be too late.
You can write your own last will and testament in Florida. Whether typed or handwritten, all wills must meet the legal requirements of Florida Statute 732.502.
Every will must be in writing and contain the following:
- The testator’s signature at the end of the will, or
- The testator’s name subscribed at the end of the will by a person in the testator’s presence and at the testator’s direction
- Signature of two witnesses to the testator’s or subscriber’s signature
- The witnesses must sign in the presence of the testator or subscriber and each other
- Wills from other states that are not holographic or nuncupative are valid as long as they comport with state law where executed
- Handwritten wills that meet the signature requirements are valid
The court will also accept wills that are military testamentary instruments made in compliance with 10 U.S.C. s.1044d, Chapter 53 by a military legal assistant.
There is no specific wording for wills and codicils as long as they meet statutory requirements.
Nuncupative and Oral Wills
An oral will is made verbally and not put into writing. Other names are nuncupative or deathbed wills.
If you execute such a will in Florida, the person witnessing your testimony may try to executive your wishes. The Florida Probate Courts will reject the will as invalid.
Handwritten and Holographic Wills
You see people doing Holographic wills on TV in intense life-and-death situations. There is an episode of the TV series MASH where Hawkeye goes to the front lines. The medical unit is under attack, and he sits under a table, handwriting his last will and testament.
There are no witnesses to Hawkeye’s signature at the bottom of the document. This is a holographic will and is not valid in Florida.
If the only will you have is holographic, the distribution of your assets will fall under Florida probate law. Your assets will pass according to the Florida Intestacy Statute, which indicates the order in which family members inherit your assets.
Depending on whether you are married, if your children are all from the same marriage or a separate marriage, or if you are single and have surviving parents determines where your assets go and at what percentage.
Valid Handwritten Wills
Handwriting leaves a will open to dispute if your terminology needs to be clarified or if they need help with reading your writing. For handwritten wills to be valid in Florida, they must contain the testator’s signature and the signatures of two witnesses.
If you have a handwritten will, consult with a law firm familiar with probate law in Florida to ensure its validity. They can prepare proper estate documents if your will does not meet the requirements.
Self-Proving Wills
A self-proving will is valid for admission to probate court without any additional proof of its authenticity. Florida Statute 732.503 allows the acceptance of self-proving wills as long as they contain the signatures of the testator, two witnesses, and a notary public.
Each person must sign an affidavit containing the exact wording of the statute. The language for the testator and the witnesses is different and requires specific verifications to meet the self-proving will’s requirements. Any will, whether typewritten or handwritten, may be self-proving.
Case Law on Handwritten Wills
A court decision is authoritative for subsequent cases dealing with the same type of issues. District Court of Appeal decisions are binding over lower courts and may be used as precedents. A decision by the Florida Supreme Court is binding on all Florida courts.
Zaidman v Zaidman
In the case of Zaidman v Zaidman, 305 So.3d 330 (2020), the Florida District Court of Appeals reviewed two competing wills. One from 2012 in Florida and one from 2015 executed in Belgium. The court’s findings held the 2012 Florida will as the controlling document because the 2015 Belgium will do not revoke it.
The 2012 Florida will include self-authentication per Florida Probate Code 732.502(1). The testator left their handwritten will with a Rabbi in Belgium.
The will specifies not revealing the will to the testator’s Belgium children until his death. The will requests disputes be resolved in the Orthodox Rabbinical Tribunal in Antwerp, Belgium, rather than through a secular court.
Residency does not determine validity. In this case, the testator’s wife presented the earlier will and evidence that she and her husband lived in Florida. The children presenting the second will live in Belgium and Israel.
The court reasons that the latter will doesn’t comport with Florida law because it has only one witness, the Rabbi. Because of this, the court states, “Even assuming that the 2015 will is valid in Belgium, it is still invalid in Florida for failing to follow the statutory formalities provided in Section 732.502(1).
Lee v Estate of Randy John Payne et al.
In Lee v Estate of Randy John Payne et al. 148 So.3d 776 (2013), an appeal was filed regarding the admission of a holographic will from Colorado. The court denied the petitioner’s request for full faith and credit for the holographic will from Colorado.
Colorado law accepts a holographic will if the signature and material portions of the document are in the testator’s handwriting. The Florida court did not accept the will as valid.
The holographic will from Colorado was not compliant with Florida Statutes §732.502(1) and 732.502(2). Under Florida law, the will is invalid because Florida does not recognize holographic wills, even if valid in the state where they are executed.
Because of this, Mr. Payne’s estate came under the control of the Florida probate court and the law of intestate estates. The court stated previous case law from In re Estate of Olson, 181 So.2d 642 (Fla. 1966).
The Olson case ruling is that although denying acceptance of a holographic will may thwart the testator’s intent, the Florida statute is constitutional. The purpose of the law is to assure a will’s authenticity and to avoid imposition and fraud.
Validating Handwritten Wills
Handwritten wills are valid in Florida if they follow all state requirements. If you have a handwritten will or any will from another state, you must confirm its validity in Florida.
Schedule an appointment with the Boyer Law Firm. We will review your will to confirm its validity and point out any areas needing clarification. If your will is invalid in Florida, we can prepare a new one that ensures asset distribution according to your wishes.
Get in touch with us, send us a message using our online contact form, or call us at (904)236-5317.
