Approximately fifty-five percent of Americans die without a will-that is, they die intestate. This is not a major concern if the person who died did not have taxable assets or only had one child from one marriage. However, the complexities of life carry on into probate. There can be many interested parties when it comes to probating an estate, and it is highly likely those parties will make competing claims to the deceased’s assets. There can be no survivors, children from multiple relationships, minor children, ex-spouses, other family members, and assets that have no right of survivorship. A person can hold assets in many ways. They can hold assets in their entirety, they can hold assets jointly (in joint tenancy), or they can hold a specific interest in an asset (such as a life estate).
So what happens when someone dies and there are assets and no will? In Florida, there is intestate succession. This is a portion of the Florida Probate Code that prescribes how assets pass when they are not included in a will. Sections 732.101 to 732.111 of the Florida Probate Code dictate how assets are transferred if someone dies intestate. There are provisions about surviving spouses, debts of the estate, children, minor children and more.
There are many reasons a person may not have a will, or, at least, not have a valid will. Two of the most common reasons are the cost of having a will prepared and a person creating their own will that, unbeknownst to them, is not valid under Florida law. Today, with the myriad of self-help legal forms on the internet and do it yourself books, inevitably, there are numerous people creating what they mistakenly believe to be a valid “will.”
So are the fill-in-the-blank template wills valid wills? What about the wills people write themselves? Can a handwritten will survive a challenge and distribute a decedent’s property in accordance with his or her wishes?
To attorneys, this is generally referred to as a holographic will. Holographic wills are generally not valid in the state of Florida. However, there is a way to make a handwritten will valid in Florida. According to the Florida Probate Code, to be a valid will in Florida, every will must (1) be signed by the testator, (2) the signing must be witnessed or attested to, (3) the witnesses must attest to the signing, and (4) the witnesses must sign the will in the presence of the testator and each other. See Fla. Stat. § 732.502. If the will is handwritten, entirely in the handwriting of the testator, and is executed in accordance with the Florida Statute, the will is not considered a holographic will and is considered to be valid in Florida.
What does all this mean? Good news. You can handwrite your will, and if you execute it properly, it will be considered a valid will under the laws of Florida. However, you cannot simply handwrite a will and sign it. You have to make sure that the formalities required by the Florida Probate Code were properly followed. Meaning, it has to be entirely in the handwriting of the testator, and signed by the testator, witnessed or attested to by two witnesses who sign the will in the presence of each other and the testator.
Seems simple enough-but here is where the problem comes in. Aside from the fact that even a slight error in the required formalities will invalidate the will, what happens when the testator dies and one of his heirs finds the handwritten will? For example, say an aging father with various assets one day sits down and writes a “will” dictating who he wishes to inherit those assets after his death. He signs it in front of two witnesses who also sign it, and it is notarized. The father puts it in a box under his bed and never tells any of his heirs about it. After the father passes away, his daughter comes across the “will” while sorting through his belongings. She now has a piece of paper, in her father’s handwriting, that says “Last Will and Testament” at the top. At the end, she sees three signatures, one of which is her fathers, and a notary stamp. What happens if her brother challenges the will because he is unhappy with his inheritance? Is the will valid? How does one go about proving that it is valid? How is the estate handled during the time the will’s validity remains in question?
Situations like this come up all too often leaving family members of the deceased confused and unsure of their options. At Chepenik Trushin LLP, a team of experienced attorneys can help you through the steps of determining the validity of a handwritten “will” and make sure a decedent’s estate is properly handled.
If you or someone you know has a handwritten will and you are unsure if it is valid, or if you wish to create a valid will, please contact Chepenik Trushin LLP.