Probate and Holographic Wills

While most people visit an attorney to have a will drawn up, there are some who prefer to execute it themselves. This is referred to as a holographic will. Proponents think it allows a person to exercise more control over their bequests. Regardless, the truth is that many holographic wills are held to be invalid, especially in Florida, where the law can be quite strict. If you would prefer to execute your will yourself, you should still consult an attorney to ensure it complies with the relevant Florida law.

Requirements

Florida’s Statute of Wills is fairly straightforward in terms of what is required for a will to be valid. While most wills are held to be valid in Florida if valid in the state where they were signed, this does not apply to holographic instruments. The rationale has been stated to be a desire to protect Florida’s disproportionately older population from making mistakes that would potentially exclude their estates from probate. If a will complies with the Statute of Wills, it is held to not be holographic, according to the language of Sec. 732.502(2).

The main requirements are twofold. The first is that the testator’s signature must be affixed at the end of the document, either in their own handwriting or at their direction (for example, if someone is illiterate or cannot hold a writing instrument, they may direct someone else to sign their name). The second is that witnesses must be present, and they must perform two functions: (1) they must be able to authenticate the testator’s signature (or that made on the testator’s behalf); and (2) they must also sign the will, in the presence of both the testator and each other.

If Your Will Is Held Invalid

If your will is found to be invalid, your estate will still pass through probate, but it will do so under Florida’s intestacy statute. This is actually a system of laws that dictate what percentages of your estate will go to which of your relatives. Depending on how many descendants you may have, the estate will be divided appropriately – for example, your spouse will receive half, if you have descendants, or the entire estate if you have no other family. Your children, parents or siblings will then receive shares if they are still living.

If you have no family of any kind, an estate will then escheat (transfer) to the State of Florida. However, there is a 10-year statute of limitations during which a person may make a claim against the estate. This may be an avenue by which stepchildren or other interested parties not related by blood may recover an interest, if a challenge in court proves unsuccessful.

Contact An Experienced Attorney

Whether you choose to write a holographic will or to have one drawn up by an experienced attorney, it is still a good idea to consult a lawyer to ensure that your will complies with the relevant statutes so you can avoid intestacy. The dedicated Hollywood probate attorneys at the firm of Steven A. Mason, P.A. can help advise you on how best to proceed. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.