In the world of estate planning and wills, most people are familiar with traditional wills, which are typically drafted with the assistance of legal professionals. However, there are situations where individuals may consider alternatives like holographic or nuncupative wills.
What are holographic and nuncupative wills? Generally, holographic wills are handwritten, and nuncupative wills are oral wills. For the probate courts to enforce a will, it must comply with Florida state law. In this article, we’ll delve into the details of holographic and nuncupative wills, their legal validity in Florida, and their impact on estate planning and the distribution of assets.
What Are Holographic and Nuncupative Wills?
A holographic will is a handwritten will that is signed by the person creating the will, known as the testator. A holographic will does not need witnesses to be valid. Some states accept holographic wills, while others do not. Requirements for a valid holographic will vary according to state law.
A nuncupative will is an oral will that is declared by the testator. Nuncupative wills are not written down and are typically made as “deathbed” wills. A nuncupative will is often declared orally to a witness or recorded. Nuncupative wills are generally not considered valid in most states.
Are Holographic and Nuncupative Wills Legally Valid in Florida?
Holographic and nuncupative wills are NOT legally valid in Florida. Read on for an explanation as to why these are not accepted as valid and the requirements that Florida has for a will to be considered as valid.
Holographic Wills
A will must have several specific characteristics to be valid in Florida. Florida law requires that every will must:
- Be in writing;
- Include the testator’s signature or the signature of someone on their behalf; and
- Include the signatures of two witnesses, who must sign at the same time as the testator.
Florida law goes on to state that if a handwritten will is executed with the formalities of a will described above, it will be valid in the state of Florida. Therefore, while holographic wills are not valid under Florida law, a handwritten will may be considered valid if signed by the testator or someone on their behalf and also signed at the same time by two witnesses.
It is important to note that even if a holographic will is legal in another state, it will not be considered legal in Florida.
Further, we often see people who mark up changes to their will after it has been executed. However, if you make handwritten changes to your previously created will, this will not be valid. In those circumstances, a Florida probate court will most likely admit your legally executed will, disregarding the changes you made with your handwriting.
Nuncupative Wills
A nuncupative will, also known as an oral will, is not considered valid in Florida. Florida law requires that a will must be in writing and verified by two witnesses to be valid, and an oral will does not satisfy these requirements.
How Will Holographic or Nuncupative Wills Affect the Distribution of Assets?
As discussed above, holographic and nuncupative wills are not considered valid in Florida. So, what happens if you or a loved one leaves behind a holographic or nuncupative will?
If you or a loved one leaves behind a holographic or nuncupative will, your assets located in Florida will pass according to the Florida intestacy statutes. These statutes provides a list of preferences for the distribution of your estate. The first person to inherit your estate is your surviving spouse:
- If you have no children, your spouse will get the entire estate.
- If you have children, but all your children are shared with your spouse and your spouse has no other children, your surviving spouse will inherit the entire estate.
- If you have any children from a different relationship, your spouse gets 50%, and all of your children divide the remaining 50% of the estate.
- If all your children are shared with your spouse but your surviving spouse has children from a previous relationship, your surviving spouse will get 50% and your children will get 50% of the estate.
If you are not married, then your estate will pass to other heirs as described below:
- Your children will inherit the estate in equal shares.
- If one of your children predeceases you, their children will inherit on their behalf.
- If there are no children or grandchildren, your parents will inherit the estate equally.
- If your parents are not alive, then your brothers and sisters, or the descendants of your brothers and sisters, will inherit the estate.
The statute lists more individuals who are qualified to inherit your estate if, at this point, none of the preceding exists. If you pass away without being survived by any person entitled to part of your estate, your property will transfer to the state of Florida.
If you don’t want your estate property distributed according to Florida’s intestate succession laws, you should draft your will with a qualified attorney.
Should You Ever Consider Using a Holographic or Nuncupative Will During Estate Planning?
In Florida, you should avoid using a holographic or nuncupative will during estate planning. As discussed above, Florida does not accept holographic or nuncupative wills as valid. Even if you have moved to Florida from another state that does consider holographic wills legal, Florida will not consider that holographic will valid.
If you want to ensure your will is valid and pass your estate on to your intended beneficiaries, you should work with an experienced estate planning lawyer.
Contact an Experienced Estate Planning Law Firm
When considering your loved ones’ future after you are gone, it is essential that your estate is passed on to your intended beneficiaries. If you want to ensure that your will is valid and your estate goes to the right people, you should work with an experienced estate planning lawyer. Beller Law, PL, is a small local firm with decades of trial experience. Our attorney, Rebeccah Beller, has experience in Florida estate planning and preparing the right documents to protect our clients. Call us today.