International Wills and Estate Planning

Florida Honors Foreign Wills

Florida is a prominent destination for immigrants.  Immigrants come from all over the world to live in Florida and hopefully become U.S. citizens.  Sunshine and beaches are not the only things that attract them to Florida, but also the hopes of providing a better life for their families.  Providing a better life for their family includes supporting them during life and after death.  A valid will ensures that immigrants have the ability to provide for their families after death by controlling the disposition of their property.

Accordingly, Florida Statute sections 732.502 and 734.104 have a significant impact on immigrants.  Section 732.502  states that, “any will, other than a holographic or nuncupative will, executed by a nonresident of Florida . . . is valid as a will in this state if valid under the laws of the state or country where the will was executed.”  A holographic will is a testator’s handwritten will.  A nuncupative will is an oral will whereby the testator states his wishes to someone and those wishes are never memorialized in writing.  Holographic and nuncupative wills are not valid in Florida even if valid in the person’s home jurisdiction.  Thus, Florida will respect foreign wills as long as the foreign wills are valid in the country in which they are executed and are not holographic or nuncupative wills.  People with foreign wills should be diligent to ensure that their foreign wills are not classified as holographic or nuncupative wills and that their wills were validly executed in their home jurisdiction.

Another instance where Florida will honor foreign wills is when they are used to devise Florida real property.  Numerous people throughout the world invest in Florida real estate. More often than not, these investors have wills that were created in their home jurisdiction.  Under Florida law, foreign wills that devise Florida real property can be admitted to an ancillary probate in Florida if:

(1)        there is an authenticated copy of the will of the nonresident;

(2)        the will devises real property in Florida;

(3)        the will is admitted any time after 2 years from the death of the decedent or at any time after the domiciliary personal representative has been discharged; and

(4)        there has been no proceeding to administer the estate of the decedent in Florida. § 734.104(1) Fla. Stat. Ann. (2002).

Moreover, the will must have been valid pursuant to the laws of the state or country where it was executed and had been admitted to probate in the proper court of any other state, territory or country. § 734.104(1) Fla. Stat. Ann. (2002).  After a Florida court determines that a foreign will satisfies the requirements under the statute, it will enter an order admitting the will for probate.  The Florida court will transfer the Florida property in accordance with the foreign will, allowing title to pass to the beneficiaries.  The statute allows an investor to create one will to control the disposition of all of his or her property thereby avoiding the duplicity of creating a subsequent will to devise the Florida real property.

This article is intended to be a brief overview of Florida’s statutes pertaining to foreign wills. Those interested in how the statutes will personally affect them should consult an attorney. Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning needs.