As an estate and probate lawyer in Plantation Florida, Samantha J. Fitzgerald is often asked whether oral or handwritten Wills are valid in Florida.
Many people wait a bit too long—while on their “deathbeds” in fact —before realizing that they should have a Last Will and Testament (“Will”).
Or, perhaps they move to Florida from a state that recognizes handwritten Wills.
And the question to the Law Offices of Samantha J. Fitzgerald becomes: can I just tell my family member what I want done with my property? Or, can I just write my Will myself? Is an oral or handwritten Will valid in Florida?
In today’s post we are going to take a look at whether oral and handwritten Wills are valid in Florida.
Before we answer that question, however, let’s define what some of these terms mean.
What is a Nuncupative Will?
A nuncupative Will is an oral Will made by the testator (deceased person). They are frequently considered “deathbed” Wills, because they are made when someone is dying.
Oral or nuncupative Wills are not valid in most states.
But there are some states that do allow nuncupative Wills if they meet certain statutory conditions.
As will be explained below, Florida is not one of them.
And no, you can’t get around the law by recording your Will. Wills that are not written and properly attested to are invalid in Florida.
What is a Holographic Will?
A holographic Will refers to a Will that is written completely in the testator’s handwriting and is not attested to by witnesses.
Scholars believe that the origins of the holographic Will are rooted in civil, rather than common law, and that its origins reach back as far as Roman law.
The Statute of Frauds, enacted in 1676 required that certain contracts and Wills be in writing and signed by the parties intending to be bound by them. This effectively limited unwitnessed Wills to personalty bequests only. With the passage of The Wills Act of Victoria in 1837, Wills, regardless of whether they bequeathed realty or personalty, were required to be attested to by witnesses.
The Validity of Oral Wills and Holographic Wills in Florida
Florida statutory law establishes the criteria needed for a Will to be valid in that state.
Florida law requires that, in addition to the testator being 18 and of sound mind, a valid Will must:
- Be signed at the end by the testator (either himself/herself or by another at the testator’s direction)
- Be in writing
- The testator’s signature must be attested to by two (2) witnesses
- The witnesses must sign in the presence of the testator and each other
As you can see from Florida’s statute, to be valid, one of the first things that Florida requires is that a Will be in writing.
Since nuncupative Wills are by definition not in writing (they are oral), they are not valid in Florida.
The other criteria a Will must meet in order to be valid in Florida is that it must be signed by the testator at the end of the document.
And it must be signed by two witnesses —in the presence of the testator and each other.
Because holographic Wills are not witnessed, they fail to comply with Florida’s law.
A Will that is written in one’s handwriting but is signed by witnesses, is not a holographic Will.
Holographic Wills, even if valid in another state —Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming—are not valid in Florida.
This means that if you have moved from a state that recognizes holographic Wills to Florida, you will need to execute a new Will. If you should die before you can do this, your holographic Will shall be invalid and your property will pass according to Florida’s intestacy statutes.
Protecting Your Family is Just a Phone Call Away.
Making sure your Will is valid and passes your estate on to your loved ones is essential to your peace of mind. If you have moved to Florida from a state that does allow oral or holographic Wills, all it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected]