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Holographic Wills in Florida

Uncategorized Jul 1, 2020
post about Holographic Wills in Florida

Who can write a valid will in Florida? What does it mean to be of “sound mind”? What is a holographic will according to Florida law?  Are holographic wills valid in Florida? What should I know about Holographic wills? What Florida Statutes can I read to learn more about Holographic wills in Florida? How can a Florida probate lawyer assist me if I believe a will was not properly executed? When should I hire a West Palm Beach estate lawyer to contest a holographic will in my Florida probate proceeding?

Who Can Write a Valid Will in Florida?

Florida Statute 732.501 states that any person who is of a sound mind and who is 18 years or older may execute a Florida will. Florida estate lawyers and West Palm Beach trust attorneys know that a person needs to have testamentary capacity when they execute a will. Otherwise, their Florida will may end up being contested by the beneficiaries. What is being of a “sound mind”? What is testamentary capacity?

 There are four main components to show testamentary capacity (sometimes called “sufficient mental capacity”) in Florida:

  1. understanding that he or she is creating a distribution of his or her property after death,
  2. knowing the nature and extent of his or her property,
  3. knowing the named heirs and members of his or her family
  4. understanding in a reasonable manner the general nature and effect of the act of signing the will.

 What is a Holographic Will?

A Palm Beach probate lawyer can tell you that a holographic will is one that is in the testators handwriting, rather than typed, and is usually signed by the testator. Generally, in Florida, holographic wills are not accepted. This is because they fail to meet the criteria that is required to execute a valid will. EVERY valid Florida will must be in writing and be executed according to Florida Statute 732.502. Therefore, in Florida, a holographic will is always invalid unless it is properly executed.

Florida Statute 732.502

This Florida Statute describes what formalities must be met for a will to be valid in Florida. A valid Florida will must 1) be in writing 2) be signed by the testator or another person at the direction and in the presence of the testator 3) be signed at the end 4) be signed in the presence of at least two attesting witnesses, and the witnesses must sign in the presence of the testator and each other. If you are considering whether you should contest a Florida will, you should read Florida Statute 732.502 in its entirety. You should also consider consulting a Palm Beach probate litigator who can evaluate a Florida will for you to see if it is valid.

Handwritten but Properly Executed

What if a will is handwritten but properly executed? Finding a properly executed, handwritten will is not common. This is because handwritten wills are usually missing witnesses, signatures, etc. However, if a will is handwritten but meets EVERY requirement under Florida Statute 732.502, probate lawyers know that it may be deemed valid in Florida. This is an exception to the general rule that Florida does not accept holographic wills.

Aretha Franklin’s Handwritten Wills

On May 21, 2019, Fox Business reported that three handwritten wills were discovered in Aretha Franklin’s home. Prior to this, it was believed that Franklin had died intestate. Dying intestate means that she died without a will, and that her heirs would inherit her estate.

Although Franklin’s estate is a Michigan estate being handled by Michigan probate lawyers, Florida estate lawyers encounter similar situations. Sometimes, probate proceedings are open under the belief that the decedent died intestate. Then, later, wills are discovered. Because these later discovered will can affect who will inherit, probate battles often emerge. For example, two of Franklin’s sons are contesting the validity of the wills that were found. Probate litigators, like us at Pankauski Hauser, are frequently hired in Florida to contest wills or testamentary documents like these.

To interview a probate litigation lawyer in West Palm Beach, free of charge, call (561)514-0900 ext.101.

Once wills like these are discovered, the probate court must determine whether they are valid, and whether or not  they should be admitted to the probate proceeding. Will Franklin’s holographic will be deemed valid? The article states that Franklin’s most recently written will does have a date on it and says last will and testament on it. However, in Florida, this would definitely not be enough to make the will valid. What will the Michigan court decide? To read more about Franklin’s estate and the probate litigation that is emerging, click here.