This article addresses the validity of a will under Florida law where the will was executed in a different state or foreign jurisdiction. While not a new issue, the question is becoming more common with vast numbers of people moving to Florida. Since 2014, no state has added more new residents from other states on an annual basis than Florida, which has outpaced all other states each year since 2014, averaging over 579,000 new residents per year. See 2019–2014American Community Survey State-to-State Migration Flows Table. With this influx of new residents comes many out-of-state wills drafted under varying state laws. Whether out-of-state wills are valid under Florida law is a question being addressed in probate matters more and more each year.
Will Execution Requirements Under Florida Law
An understanding of the Florida will execution requirements is necessary before we can determine if an out-of-state will is valid in Florida. Under the Florida Probate Code, a will must be in writing, signed by the person making the will (the testator) at the end of the will, the testator must sign the will in front of two witnesses, and each witness must sign the will in front of each other and the testator. See Fla. Stat. Section 732.502(1) (2022). Many wills, whether drafted in Florida or elsewhere, are notarized at the end, but is this required? A notarization is not required but is a best practice. The notarization of a will makes the process easier. A properly notarized will helps the Florida court determine the validity of the will and guide the court in following the testator’s wishes. The process of determining the will’s validity and then using it as a guide for distribution is often referred to as admitting the will to probate and administering the will. Notarizations for this purpose are often referred to as self-proving affidavits, and wills including them are considered self-proved. Self-proved wills allow for the admission of the will to probate without the necessity of admitting evidence on the validity of the will execution.
Florida Law Specifically Addresses Execution Requirements for Out-of-State Wills
The Florida Probate Code has an explicit exception from the general requirements described above to address wills signed by non-Florida residents in other states or countries. A will that is valid under the laws of the state or country where it was signed will be deemed valid in Florida. See Fla. Stat. Section 732.502(2) (2022). A will that satisfies this statute may be submitted for probate whether it was signed before or after the statute took effect. It is important to understand that this statutory exception for out-of-state wills only applies to nonresidents of Florida. If a person is deemed to be a resident of Florida, but signs a will in another state or country, the will must meet the Florida specific requirements described above.
While the exception is helpful in many circumstances, it specifically prohibits spoken wills and handwritten wills. Spoken wills are those where the testator states their desires, often in their dying moments, but the words are not reduced to writing and signed by the testator. These types of wills are often referred to as nuncupative wills and will not be deemed valid in Florida, even if valid where created. It may seem unlikely that such a scenario would unfold, but wills are often submitted for probate in Florida where the Testator died outside the state leaving property within Florida.
Handwritten wills are also excluded and will generally not be deemed valid in Florida, even if valid where created. These types of wills are often referred to as holographic wills. However, a handwritten will that is proved to be in the testator’s handwriting, signed by the testator at the end in front of two witnesses, and signed by each witness in front of each other and the testator is valid under Florida law.
Notarial Wills
A notarial will is a will that is retained in the custody of the notary, pursuant to the law of the state or country where it was signed, which requires the will to remain in the notary’s custody. Notarial wills can prove to be difficult to submit for probate in Florida because they must remain with the notary in the foreign jurisdiction. Florida law explicitly addresses this issue and provides that if the notary authenticates a copy of the will, the will copy may be admitted for probate if the notary’s position, signature, and seal are all authenticated by an American consul, or in accord with the Hague Convention. See Fla. Stat. Section 733.205(1) (2022).
What If My Out-of-State Will Is Successfully Challenged for Lack of Proper Execution
Wills are found to be invalid for varying reasons. Wills are often challenged based on the theory of lack of capacity or undue influence. While these theories are a common basis for invalidating a will under Florida law, they are beyond the scope of this article and will not be addressed here.
My out-of-state will has been invalidated by the court—what now? With the will invalidated issues remain, including distribution of the property and who will be appointed as a fiduciary to oversee the process. When a will is invalid, and there is no other valid will for probate, Florida’s intestacy statutes direct the distribution of assets in Florida and who will serve as a fiduciary. The fiduciary for a will administration is often referred to in Florida as a personal representative, and elsewhere as an executor or administrator.
Distribution of an estate through the intestacy statutes can cause grave consequences the testator, and the drafter, may not have anticipated when the will was drafted and signed years earlier under the laws of a different state or country. All too often, the invalidity of an out-of-state will creates a distribution to the heirs of the deceased person (the decedent)that the decedent never would have desired. The intestacy statutes treat the immediate family, including the surviving spouse and surviving children of the decedent, in different ways depending on whether the children are children of the surviving spouse or not. Similarly, extended heirs are treated different based on their degree of separation from the decedent. Once the strictures of the intestacy statutes apply, practitioners are left with little, if any, argument regarding distribution and the court is similarly left with little, if any, discretion.
Conclusion
With the growing migration of people into the state of Florida, attention must be given to wills signed in other states or countries. Disposition of assets after death is one of the last overt actions a person can design to help and care for those they care about. Attention must be given by practitioners and new residents to Florida alike so that opportunity is not lost.
Reprinted with permission from the March 30, 2023 edition of The Legal Intelligencer © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.