One thing that makes our country both great and frustrating is that for certain types of law, there are often different, incompatible, conflicting laws that vary by state. On occasion, various committees are formed to draft “Uniform” Codes, but it is still up to the individual state legislatures as to whether or not they should be adopted, and what changes are to be made before they are. Probate law is one such area.
I was reading an article by a California estate planning attorney arguing that under certain circumstances, a handwritten will may still be valid because of certain backdoor rules — specifically, that many states recognize a will executed in another state as valid if it complied with that state’s laws at the time of execution.
I am not licensed to practice law in California or Oregon, so I’ll stick to Florida law. First, a definition: a holographic will is a will that is entirely in the testator’s handwriting and signed by the testator. No typing.
In Florida, section 732.502 of the Florida Statutes provides that a will must be signed (or acknowledged) at the end by the testator in the presence of two witnesses, who must be present with the testator and with each other when signing. If two witnesses each sign separately — without seeing both each other and the testator sign — the will is invalid.
The article also points out that states often have a rule that if a will executed by a resident of another state would have been valid in that state at the time of execution, it will be valid in the new state too. Florida has a similar rule. For example, if Michael executes his will while living in a state that requires only one witness, and he later moves to Florida, that will remains valid in Florida.
But Florida draws a hard line on holographic wills. Under Florida Statute 732.502: “Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed.” In other words, even if a holographic will would have been valid in another state, Florida will not accept it. If the will is properly witnessed, it is valid either way.
P.S. A “nuncupative” will is an oral will. Those are not valid in Florida either, even if videotaped or put on YouTube.