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Holographic Wills

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Another situation you sometimes see is a person leaving a handwritten document as a Will. In legal terms this is called a “holographic” Will. This type of will may be valid in Florida, provided it follows the same witnessing requirements as a more traditional typewritten Will.

Under Florida law, a valid Will must be signed in the presence of at least two witnesses. The law does not care how the Will itself was prepared. It can be typed or handwritten. It just needs to be in writing–again, no oral Wills are allowed in Florida–and signed in the presence of the witnesses.

Where holographic Wills can run into trouble, however, is that there are states where such documents do not need to be witnessed in order to be valid. For example, Tennessee recognizes holographic Wills even when there are no witnesses. But if someone were to try and probate a holographic Will signed in Tennessee with a Florida Court, that would not be allowed. Florida simply does not recognize any unwitnessed Wills, even those recognized by another state.

The Consequences of an Invalid Will

So what happens when a Florida resident leaves a nuncupative or holographic Will that they thought was valid? Essentially, the Florida courts will act as if that will never existed. This means that if the decedent had a prior Will that did comply with Florida law, that Will is then admitted to probate. If there was no prior valid Will, then the decedent’s estate is subject to Florida’s intestacy laws.

“Intestacy” simply refers to a scenario where a person dies without leaving any type of valid Will. Intestacy laws step in and automatically decide who is entitled to inherit the deceased person’ property–regardless of what their wishes might have been.

Obviously, intestacy is never an ideal situation. And it can be avoided through proper estate planning. If you need advice or assistance from an experienced Pompano Beach estate and trust litigation attorney, contact the office of Mark R. Manceri, P.A., Attorney at Law, today to schedule a consultation.

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