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David Toback, Attorney at Law
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What is a Holographic Will and is it Valid in Florida?

We speak often about intent when it comes to determining how property will be devised or inherited, and about intent being a major factor in probate litigation disputes. And surely, intent does play a big role when there is litigation over how property should be passed on. But it’s important to remember that in Florida, even simple wills still need to follow strict procedure to be valid, and if that procedure isn’t followed, all the evidence of intent in the world may not be enough to avoid problems.

Holographic Wills

In many states, holographic wills are allowed. Holographic will laws vary by state, but generally, these are wills that are drafted without formality—such as, missing signatures or witnesses—but which are still considered valid so long as there is evidence of intent.

This is usually in the form of proving that the will or signature on the will is in the handwriting of the person passing along the property. Although not as good as witnesses, many states presume that if there’s a writing in someone’s own handwriting, that’s enough to demonstrate how that person wanted their property passed on.

Florida Laws on Wills

Florida does not allow for holographic wills. Florida’s will statute requires wills to be signed by the person making it, along with two witnesses, at the end of the will.

Of course, many people come to Florida to live after living in other states, and often, they have made wills in those states that may be binding under those other state laws. Florida has an exception for those situations—but not a large one.

Florida law says that so long as your will would be valid and binding in the state it was made, it’s valid here in Florida. However, the law specifically states that this doesn’t apply to holographic wills. There is no procedure to allow holographic wills if the intent or authenticity can be ascertained. So even if a holographic will would be binding and enforceable in another state, it’s not here in Florida.

The Right to Make Wills

Florida does have a general constitutional right allowing people to use and dispose of their property as they see fit, but that doesn’t override the state’s interest in making sure that wills are genuine and that there is no fraud involved in making and interpreting them. Thus, so long as a law isn’t overly burdensome on someone’s right to devise property, it will be considered legal, as Florida’s will statute is.

As an interesting aside, there is no right to make a will or devise property in the federal Constitution.

In today’s age of buying do-it-yourself estate documents online and in stores, there’s a big risk that people may think those forms are sufficient to carry out their intent. But they very well may not be, if the strict requirements of Florida wills aren’t complied with.

Handle your estate planning matters the right way, in compliance with Florida laws. Contact Tampa business and probate attorney David Toback to discuss your needs and make sure your estate planning documents are up to date, and executed properly.

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