IS MY OUT-OF-STATE WILL VALID AND EFFECTIVE IN FLORIDA?

Most out-of-state wills are valid in Florida. If the will is in compliance with the laws of the state in which it was drafted, it will almost always be valid. The one major exception is holographic wills. Holographic wills are handwritten by the person whose will it is, signed by them, but is not witnessed. Florida does not recognize holographic wills, even if it is valid in the state in which it was drafted.

It is also important to consider the point that even if your will is valid in Florida, it might not be “selfproved.” A self-proved will is witnessed and signed by two witnesses and a Notary Public. If a will is not selfproved, the probate court will have to track down witnesses who will testify as to the validity of the will. This can prove exceptionally difficult if you have an out of state will that was drafted years and years ago. The
process of locating witnesses can be time consuming and expensive.

Is my out-of-state Will effective in Florida?

Be careful with the difference between valid and effective. Even if your will is valid in Florida, certain key provisions still might not be effective under the laws of this State. Specifically, Florida law can have significant effects on the following provisions of a will:

Homestead: Florida has very specific laws on how you can devise your homestead property.

Elective share: Florida provides for a spouse to have the option of taking an elective share if they are not satisfied with what you give them in your will.

In Florida, your personal representative must be either related to you by blood or be a Florida resident. If the personal representative you have selected in your will is neither of these things, this provision will not take effect.

Other Florida laws that can render sections of your will ineffective include the fact that Florida does not recognize common law marriages and it is not a community property rights state.

Florida probate laws are specific and complex. Make sure you have a Florida attorney review your will if you have moved to Florida from out of state.

A note about Wills: Florida law requires that anyone who has possession of a Will must file it within 10 days of the death of the testator with the local circuit court in the jurisdiction where the decedent would have a probate proceeding whether or not a probate proceeding is planned. If a probate court proceeding is necessary, the court will determine whether the will is valid.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.