Are Out-of-State Wills Considered in Florida Probate?

By Joseph Nicholson

Out-of-state wills can be filed for consideration in Florida probate court, but they may not always be held valid and enforced. According to the Florida Statutes, the will must be valid according to the state in which it is executed. Additionally, however, Florida does not recognize certain types of wills even if they are valid where executed.

Foreign Execution

According to section 732.502(2) of the Florida Statutes, and subject to two exceptions, a will is valid if executed in a foreign state or country if it is valid according to the laws of that state or country. A will by a member of the military who is eligible for military legal assistance, and that is executed in accordance with federal law on military wills, is valid in Florida regardless of where it was executed.

Holographic Wills

Florida does not recognize holographic wills, or those handwritten by the testator and not witnessed. Some states recognize such wills if the entire will is in the handwriting of the testator and that fact can be authenticated. Florida does not recognize holographic wills under any circumstances, even if the will is recognized in the state where it was executed.

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Handwritten, Witnessed Wills

A will that is handwritten, but which otherwise meets the requirements of execution in Florida, is not considered a holographic will under Florida law. Thus, an out-of-state will would not be invalid just because it is handwritten, so long as its validity is not based on recognition of a holographic will in the state where the will was signed.

Nuncupative Wills

The other exception to the general rule on foreign execution is for oral wills, called nuncupative wills. As with holographic wills, Florida does not recognize nuncupative wills under any circumstances, even if the will is valid in the state where it was made. Even in states that recognize oral wills, there are often special required circumstances that justify bypassing the ordinary formalities of a written will.

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States Where Holographic Wills Are Legal

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Handwritten Last Will & Testaments

Each state has its own laws on what constitutes a valid last will and testament. In most states, a will must be in writing, but whether it is typed or handwritten generally doesn't matter if the will meets all the other requirements for validity in the state. About half of states, however, recognize a special type of handwritten will.

Is a Hand-Written Notarized Will Legal?

Your will can direct the distribution of your property after your death, name someone you trust to manage your estate and even nominate a guardian for your minor children. But your will can't do any of that if it isn't valid in your state. Generally, a handwritten will is just as legally valid as a typed or printed will as long as it meets your state's standards.

Types of Last Will & Testaments

Testators can use various types of wills to establish an estate plan. The most prevalent type is the written will, accepted in every state. However, not all testators have the opportunity to execute a written will that complies with statutory guidelines prior to passing, so state law began to recognize additional formats under certain circumstances. Not all types of wills are recognized in every state, so you should consult with an attorney before establishing any type of will.

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