If you’re a Florida probate attorney, sooner or later you’re going to have to figure out if a will or trust that was perfectly valid and legal in some other state or country, works in Florida. It’s not a matter of if, but when.
Why? Because this state’s a magnet for people. Florida is the first choice for relocating retirees within the U.S., the largest recipient of domestic state-to-state migration within the U.S., the largest recipient of migrants to the mainland U.S. from Puerto Rico, and the largest recipient of international migration to the U.S.
Florida’s no exceptions, strict-compliance approach to execution formalities
Many new residents never get around to executing new Florida-law compliant estate planning documents. That’s a mistake.
Retirees from Colorado may be surprised to learn their wills don’t always work in Florida, same goes for all those retirees from Illinois with revocable trusts that pass muster back home, but fail once they’ve moved to Florida. And just because your will’s valid in Argentina, doesn’t make it so in Florida; same goes for that will you signed in Belgium.
All of these non-Florida wills and trusts failed not because they were the product of foul play or weren’t otherwise legally prepared back home, they simply didn’t comply with Florida’s exacting execution formalities. Scholars will tell you these process-oriented requirements serve four key functions: a cautionary function (causing testators to take their wills seriously); a protective function (shielding testators against bad actors at the time of execution); an evidentiary function (preserving a written record); and a channeling function (forcing testators to use standard will formats that are easily identified and understood by courts).
Many of these same scholars will also tell you Florida’s no exceptions, strict-compliance approach to these formalities outlived its usefulness long ago. For a good example of that school of thought you’ll want to read Wills Formalities in the Twenty-First Century, which deserves a prize for best ever opening line in a trusts and estates law journal article:
Testicle gripping had solemn significance in ancient pre-Roman times. When a man took an oath, the action’s importance was underscored by the equally memorable act of publicly holding either his own or another man’s genitals. In early Bavaria, a legally completed transfer of real property required the conveyor to hit a young boy on the side of the head. … Anecdotal evidence suggests that across cultures and time, some sort of ritual accompanies significant acts.
Caveglia v. Heinen, — So.3d —-, 2023 WL 2395314 (Fla. 4th DCA March 08, 2023)
This case involved a Louisiana man who retired to Florida and later died a resident of this state. Back when he still lived in Louisiana the decedent executed a will in 2014 that all sides agree is also valid in Florida; he then executed a second will in 2015 revoking his 2014 will. The 2015 will, which was handwritten (holographic), wasn’t witnessed. This kind of un-witnessed handwritten will is perfectly legal and valid in Louisiana (and a lot of other states), not so in Florida. When the 2015 Will was challenged … it failed.
What’s interesting about this case isn’t the outcome, it’s the legal dots the Florida court connected in arriving at its final conclusion. For starters, the case for honoring the 2015 will was simple and compelling as a matter of fairness, which makes it especially dangerous because it’s the kind of argument any of us could easily fall into if we’re not careful. The focus here is on the decedent’s reasonable expectations based on his place of residence (domicile) at the time he executed his wills in 2014 and 2015:
Appellants contend that Louisiana law should determine whether the 2015 Will revoked the 2014 Will, since the decedent was domiciled in Louisiana when both wills were executed. They claim that the fact that the decedent moved to Florida in 2018 could not operate to “revive or resurrect” the 2014 Will that had been revoked under Louisiana law by the 2015 Will.
This argument would have worked if Florida had adopted section 2–506 of the Uniform Probate Code (UPC) (more on this point later). Unfortunately for the testator, we’re not there yet. Here’s why the Louisiana will failed.
First, it’s your domicile at death — not at the time you executed your will — that matters under Florida law.
Because a testamentary instrument’s validity is determined by the law of the state where the testator is domiciled at death, which in this case is Florida, the 2015 Will cannot be recognized as revoking the decedent’s 2014 Will. …
These principles are embodied in the Restatement. Restatement (Second) of Conflict of Laws § 263 (Am. L. Inst. 1971) provides:
(1) Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death.
(2) These courts would usually apply their own local law in determining such questions.
(Emphasis added). With respect to revocation of a will, Restatement (First) of Conflict of Laws § 307 (Am. L. Inst. 1934) states:
Whether an act claimed to be a revocation of a will is effective to revoke it as a will of movables is determined by the law of the state in which the deceased was domiciled at the time of his death.
Second, no matter how valid or legally enforceable your handwritten (holographic) will might have been at the time it was made back home, if it’s not executed in strict compliance with Florida’s witness requirements — it’s going to fail in Florida. So saith the 4th DCA:
While Louisiana law permits holographic wills, Florida does not unless the instrument is witnessed with the same formalities as any will. Florida law expressly does not recognize holographic wills executed by non-residents. Section 732.502(2), Florida Statutes (2019), states:
Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(Emphasis added). With respect to revocation, section 732.505(2), Florida Statutes (2019), provides that a will is revoked “[b]y a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.” Id. (emphasis added). Here, because the 2015 Will was not executed with the formalities of section 732.502(1), it cannot be probated as a will in Florida, nor can it act as a revoking document.
It doesn’t have to be this way
At the opposite end of the spectrum from Florida’s “gotcha” approach to non-Florida wills and trusts is section 2–506 of the Uniform Probate Code (UPC). According to the UPC, the “purpose of this section is to provide a wide opportunity for validation of expectations of testators.”
Florida’s economic growth and prosperity is due in large part to the wealth — both in financial and human capital terms — that the flow of new residents bring to this state every year. We owe it to these new residents to make sure their perfectly valid and legal estate planning documents don’t get wiped away simply by moving to Florida. Adopting UPC section 2-506 would go a long way towards making that happen.
The UPC’s approach would have validated all of the non-Florida wills and trusts noted above, including the Louisiana will rejected in the Caveglia case. Here’s what UPC section 2-506 would look like if adopted in Florida:
SECTION 2-506. CHOICE OF LAW AS TO EXECUTION. A written will is valid if executed in compliance with [F.S. 732.502(1)] or its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.
This section permits probate of wills in this state under certain conditions even if they are not executed in accordance with the formalities of [F.S. 732.502(1)]. Such wills must be in writing but otherwise are valid if they meet the requirements for execution of the law of the place where the will is executed (when it is executed in another state or country) or the law of testator’s domicile, abode or nationality at either the time of execution or at the time of death. Thus, if testator is domiciled in state 1 and executes a typed will merely by signing it without witnesses in state 2 while on vacation there, the court of this state would recognize the will as valid if the law of either state 1 or state 2 permits execution by signature alone. Or if a national of Mexico executes a written will in this state which does not meet the requirements of [F.S. 732.502(1)] but meets the requirements of Mexican law, the will would be recognized as validly executed under this section. The purpose of this section is to provide a wide opportunity for validation of expectations of testators.