Video Summary

What is a holographic will?

A holographic will is one that is written out by the person, or the testate of the person, that they’re writing their own will. So, it’s a handwritten will. And under Florida law, the holographic will – or a handwritten will by the testate or the person that’s making out the will for themselves – must comply with Florida law, which requires that it be witnessed by two different witnesses who sign in the presence of the person that’s writing out the will.

I hear from my clients, from time to time, where they’ve put off making out a will. They get ready to go on a trip – particularly if they’re going to Europe or getting on an airplane ride – that they’ve written out something as to what they want done. They show it to me after they get back safe and sound, and then say, “Well, I did a will, myself.” Well, that’s not gonna be effective in Florida, because it doesn’t have the two witnesses, or wasn’t executed with the formality that’s required under Florida law, which is the two witnesses.

So if it is witnessed and the witnesses were present when the testate or the person making out the will signed it, it’s not effective. If they were there, it is effective. And then we’ve gotta try and decipher what you had to say, without any guidance of an attorney.

I believe that there are some states that give preference to holographic wills, and not require them to comply with the formalities of a typewritten will or a will prepared by a lawyer. But that is not the case in Florida.

So, if you have a holographic will, give me a call at 727-847-2288, and I’ll set you up a will conference. Thank you.

Video Summary

Can family members have me removed from the Will of my late parents?  No, they cannot.  Once someone passes away the Will cannot be changed.  The only time a Will can be changed is while someone is alive and they can always have a last Will and they can choose who they wish to leave matters to.  There are various challenges that can be made to Wills, which can divest you or eliminate you as a beneficiary if the Will was procured by undue influence or the testator, that’s the person making the Will, was not competent.  That is a Will contest and if you were a beneficiary under the Will that was procured by undue influence or the person was not competent, well then you could possibly lose your inheritance.

But just because they want to remove you as a beneficiary under the Will they cannot do that unilaterally.  There has to be some legal basis as to why you would not inherit.  Along the problems that we are seeing, as far as trusts are concerned, the trust is not published and if someone is appointed as a trustee under your parents trust and they passed away, the trustee has the power to distribute the property to whomever they want and cut you out because you do not know what is in the trust, which is a real problem, particularly when you come see an attorney to ask him to do something about it and you do not have a copy of the trust so you do not know whether you are included or not.

If you have any questions about that, about your Will or trust and you being a beneficiary, well give me a call at 727-847-2288.

Video Summary

What happens to personal property if there is no will?  I am assuming that the question presupposes or supposes that the person has passed away and has personal property.

And so what usually happens is, whoever gets to the personal property first, if it is untitled, is the one that takes advantage of it and does whatever they want to with it.

What should happen is that an estate proceeding should be established, although rarely it is, and the children or heirs of the decedent agree as to who is going to be the executor or personal representative of the estate.  The personal representative then would inventory and list all the personal property and then sell it.

Now there is an exemption against the claims of creditors for personal property in a probate proceeding so that it goes to the children as far as that is concerned.

So my experience has been that if their only asset that the decedent has is personal property, usually the relatives or the caregiver or whomever is close to the decedent, takes care of disposing of the property and sometimes that creates some problems with the other heirs or relatives whenever they do not share it.  But rarely is an estate opened unless there is titled personal property other than an automobile.

So if you have any questions about an estate, give me a call at 727-847-2288.

Video Summary

If I have assets in more than one state do I need more than one will?  The answer to that is no, no, no.  You need to have one will and it says that I devise all my real and personal property wherever it is situated to, and then you say who you leave it to.  And so if the will is valid in the state where you execute it, then you can then use it to transfer or have the property probated in another state.  So you have one will and the other states will honor that will if it’s honored in the state where it’s executed.

There is one exception is if you have what they call a holographic will which is a hand-written will, some states allow that to be entered.  Florida requires all wills have at least two witnesses.  So the will must have two witnesses to be recognized by Florida.  But you only have one will and that covers all your asset no matter where they’re situated.

Now you run into a problem if you have property outside the United States, particularly in Europe or some of the other countries and that we have the English common law and these other states are code states, like in France they have the Napoleonic code, they might have forced inheritance agreements.  And so you need to have that addressed.  And then whenever people from England or Europe come to see me here in Florida, I prepare a will for U.S. assets only that complies with Florida law because it is a nightmare trying to understand what the laws are of a foreign country in order to have them apply to the Florida assets.  And then you have other problems as far as community property states which we have seven of those are all west of the Mississippi, and that can affect who inherits your property and who’s entitled to the property.  I’m not a community property expert but I know just enough to know that I don’t know.

So but if you’re a Florida resident you only need to have one will for wherever your assets are situated throughout the United States.  And if you have property in a foreign country I suggest that we have an attorney or a notaire in that particular country prepare an inheritance agreement so you know who will receive it whenever you pass away.

So if you have any questions about this, give me a call at 727-847-2288.

Video Summary

Can I omit a beneficiary from my will? Yes you may omit anyone you like from your will, except for a spouse. If you omit a spouse from your will, well they have a right to take what they call an elective share and they are entitled to 30 percent of whatever you have under your will as well as trusts. So you don’t want to omit your spouse unless you a prenuptial agreement or a marital settlement agreement wherein the spouse is waiving the interest in the property.

Another time that you have a problem is as far as omitting or conveying property to whomever you would like is if you have your homestead property and at the time you pass away you are married or have minor children, the Florida statute and Florida constitution restrict you who can leave it to.  If you are survived by a spouse well then you can only leave it to the spouse; you can’t provide that she has a life estate and it goes to somebody else after her death; you can leave it outright to her. So it’s an invalid devise, so with homestead property.

If you are survived by minor children then you cannot devise the property to anyone.  If you have a spouse also she’s entitled to a life estate or she makes an election to a one-half interest and the children are entitled to the other one-half. And that is all the children, not just the minor children.

So usually you can omit any beneficiary, children, whomever you want, adult children, that is, whoever you want in your will.  However, if you are survived by a spouse you can’t omit your spouse unless you have a prenuptial agreement without her having rights to take her share of the estate. So if you would like to prepare a will I’d be happy to meet with you.

My phone number is 727-847-2288.