You have met with a competent Florida estate planning attorney and discussed your situation and your goals. He/she has drawn up a Last Will & Testament for you that meets your needs, fits your financial and family circumstances, and anticipates every contingency. You have signed it in the manner required by Florida law. You have peace of mind, confident that when the time comes, your assets will be distributed just as you wish, to whom you wish.
But wait: Let’s say a year or two goes by and things have changed, as they inevitably do. Maybe your spouse is gone. Maybe you have remarried. Maybe the person you named to serve as your personal representative (executor) is in ill health. Maybe you want to delete a beneficiary, or add one. Maybe one of your children or grandchildren has divorced, remarried, become ill, become wealthy, or fallen on hard times. You are re-thinking what you want to leave to whom.
It would be so convenient to just cross out a few sentences and add some handwritten notes to your document. How difficult can it be, right? You would avoid legal fees and could do it all right at home, without another trip (or zoom visit) to your lawyer. It would be easy. But would it be wise?
Problems With Holographic Wills
A holographic will is legalspeak for a handwritten will. Are holographic wills valid in Florida? The answer is a guarded yes, but the will must meet all the technical requirements of execution under Florida law – and in reality, few do. Execution requirements under Florida law are:
- The testator (will-maker) must sign at the end, and in the presence of two witnesses.
- The two witnesses must sign in the presence of the testator and one another.
- Not required by law, but optimal legal practice our office follows: Notarization in order to make the will “self-proving” when it is admitted to probate court. If it is not self-proving, the original witnesses will need to show up in probate court or sign an oath in front of a court-appointed commissioner when the will is submitted to probate. This may prove to be an impossible task. At best, it can add layers of frustration, delays and expense for your heirs.
If your will does not conform to these rules, it will not be admitted to probate court. Your wishes will not be honored, and you will be considered to have died intestate – in other words, without a will. If this occurs, your assets will be distributed as required by Florida intestacy law. The people who get your assets may not be the ones you want to have them, and people you care about may be left out in the cold.
Any handwritten changes you make to your will without executing a proper codicil (the term used for an amendment to a will) will be disregarded, and could well lead to litigation and family disputes. A good example is what unfolded after the late talk show host Larry King made last-minute, handwritten changes to his will.
You should also be aware that if you have a holographic will from another state, it may not be valid in Florida.
In addition to the fact that handwritten wills usually do not meet technical execution requirements, bear in mind that anyone planning their estate should get professional legal guidance. We cannot count the number of times callers have told us that “all we need is a simple will.” But when they show up and review the titling of their assets and their family situation with our attorneys, it becomes apparent that achieving their goals and avoiding mistakes is not so simple, after all. If you don’t get help from a professional who knows the law, knows all the pitfalls, and knows what questions to ask, you could end up accidentally disinheriting someone, making a bequest to someone you wanted to exclude, or even losing your homestead protection.
There are a myriad of issues and it behooves you to cover all your bases by consulting a seasoned estate planning attorney. After all, once you’re gone, you can’t backtrack and correct your mistakes. Contact The Karp Law Firm at (561) 625-1100 to schedule a consultation to discuss your estate plan.