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I Have Moved to Florida: Is My Out-of-State Will Valid? If Not—What’s Next?

Is Your Out of State  Will Valid In Florida? Whether out of state wills are valid under Florida law is a question being addressed in probate matters more and more each year. What is the validity of a will under Florida law where the will was executed in a different state or foreign jurisdiction. Vast numbers of people are moving to Florida. Since 2014, no state has added more new residents from other states on an annual basis than Florida. This has outpaced all other states each year since 2014, averaging over 579,000 new residents per year. With this influx of new residents comes many out-of-state wills drafted under varying state laws. Whether out-of-state wills are valid under Florida law is a question being addressed in probate matters more and more each year.

Will Execution Requirements Under Florida Law

Under the Florida Probate Code, a will must be in writing, signed by the person making the will (the testator). At the end of the will, the testator must sign the will in front of two witnesses, and each witness must sign the will in front of each other and the testator. See Fla. Stat. Section 732.502(1) (2022). A properly notarized will helps the Florida court determine the validity of the will. The process of determining the will’s validity and then using it as a guide for distribution is often referred to as admitting the will to probate and administering the will. Notarizations for this purpose are often referred to as self-proving affidavits. Wills including them are considered self-proved. Self-proved wills allow for the admission of the will to probate without the necessity of admitting evidence on the validity of the will execution.

Florida Law Specifically Addresses Execution Requirements for Out-of-State Wills

The Florida Probate Code has an explicit exception from the general requirements described above to address wills signed by non-Florida residents in other states or countries. A will that is valid under the laws of the state or country where it was signed will be deemed valid in Florida. See Fla. Stat. Section 732.502(2) (2022). A will that satisfies this statute may be submitted for probate. It is important to understand that this statutory exception for out-of-state wills only applies to nonresidents of Florida. If a person is deemed to be a resident of Florida, but signs a will in another state or country, the will must meet the Florida specific requirements described above.

Handwritten wills

Handwritten wills are also excluded and will generally not be deemed valid in Florida. These types of wills are  referred to as holographic wills. However, a handwritten will that is proved to be in the testator’s handwriting, signed by the testator at the end in front of two witnesses, and signed by each witness in front of each other and the testator is valid under Florida law.

Notarial Wills

A notarial will is a will that is retained in the custody of the notary, pursuant to the law of the state or country where it was signed, which requires the will to remain in the notary’s custody. Notarial wills can prove to be difficult to submit for probate in Florida because they must remain with the notary in the foreign jurisdiction. Florida law explicitly addresses this issue and provides that if the notary authenticates a copy of the will, the will copy may be admitted for probate if the notary’s position, signature, and seal are all authenticated by an American consul, or in accord with the Hague Convention.

Read more related articles here:

Will Your Last Will and Testament Work in All States?

Also, read our previous Blogs at:

What Happens If You Die Without a Last Will and Testament?

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