One of the effects of globalization is the increase in foreign-born individuals and families visiting, living and investing in the United States. There are now over 40 million foreign-born individuals residing in the U.S., or 12.9 percent of the U.S. population.1 During 2015, foreign buyers of real estate accounted for 12 percent of the total number of residential units sold in Florida alone.2 As these people look to pass on their U.S. assets after death, they may do so by a will or trust executed in the U.S. or in their home country. Recently, Florida’s Third District Court of Appeal was asked to consider whether the disposition of real and personal property owned by a citizen of Argentina was governed by the will she executed in the U.S. or by the notarial will executed in Argentina.3 The court acknowledged that notarial wills may be admitted to probate in Florida, but held that the Argentine will was barred as a nuncupative will.
Different Countries, Different Formalities
Elena Isleno, a citizen of Argentina, died in Florida at 79 years old. At the time of her death, she owned property in the U.S. and Argentina. Shortly before her death, Elena executed two wills. She executed the first will in New York, directing the disposition of her real and personal property located in the U.S. to friends and family living in the U.S. and Argentina. Elena signed the will in the presence of attesting witnesses who also signed in the presence of each other and Elena, in accordance with the typical formalities required of American wills.4
Four months later, Elena executed a second will in Argentina. This will directed the disposition of all of her assets to friends and family living in Argentina. For this will, Elena orated her testamentary wishes to a notary who typed up her will, then read the will back to her. Elena approved the will in the presence of the notary and two witnesses, and the notary signed and stamped the will. But neither Elena nor the witnesses signed the will.5
The two wills had completely different beneficiaries. None of the beneficiaries of the New York will were named as beneficiaries of the Argentine will, and none of the beneficiaries of the Argentine will were named as beneficiaries in the New York will. After the Argentine will was admitted to probate in Argentina, the beneficiaries of the New York will filed a petition for administration of the New York will in Florida. The beneficiaries of the Argentine will objected and sought to have the Argentine will admitted instead.
Admitting a Foreign Will to Probate
Florida’s Third District faced the issue of whether the unsigned, notarial Argentine will could be admitted to probate in Florida. Florida law allows a foreign will to be admitted to probate if the will is valid under the laws of the country where executed.6 This is the case even if the will doesn’t strictly comply with Florida’s will formalities.7
Nonetheless, the Florida Probate Code carves out an exception for two types of wills that are never valid under Florida law: holographic wills and nuncupative wills.8 A holographic will is a handwritten will. A nuncupative will (although not defined in the Florida Probate Code) is generally understood to be an oral will, a common example being the dying soldier who tells his last wishes to his compatriot. Holographic wills and nuncupative wills can’t be admitted to probate in Florida.
Another type of will, more common in civil law jurisdictions, is a notarial will. A notarial will involves a testator declaring their last wishes to a notary who transcribes what is said then retains the will permanently, sometimes in a central registry.9 Because a foreign country’s laws may require that the will remain in the custody of the notary, the Florida Probate Code allows a copy of a nonresident’s notarial will to be admitted to probate in Florida if the original will could have been admitted in Florida as well.10
With that, the court considered whether Elena’s notarial will was barred as a nuncupative will. The court recognized that “in one sense, every notarial will is nuncupative: it is orally pronounced by the testator to the notary.” But the court acknowledged that “there would be no point to recognize foreign notarial wills in [the statute] if they were all barred by the prohibition of nuncupative wills.”11 Thus, the court distinguished a notarial will signed by the testator as one allowed to be admitted to probate, from a notarial will not signed by the testator as a nuncupative will barred from being admitted to probate under Florida law.12 Consequently, the court acknowledged that Elena’s Argentine will was a notarial will, but because Elena didn’t sign it, the court held it was a nuncupative will that couldn’t be admitted to probate in Florida.13 As a result, the New York will governed the disposition of Elena’s assets and the claim of the beneficiaries of the Argentine will failed.
Take a Second Look
Estate planners will find themselves dealing with more international clients as the United States continues to become a more global community. The dispute over the distribution of Elena’s estate should cue advisors to double-check that clients’ wills and trusts executed in the U.S. or abroad will have their intended effect. As the court in Elena’s case noted, “Florida is already a global community … We owe it to them to ensure that their testamentary intentions are strictly honored.”
1. U.S. Census Bureau, Census of Population, 2010 American Community Survey.
2. National Association of Realtors, Profile of International Home Buyers surveys, 2015.
3. See Malleiro v. Mori, 182 So.3d 5 (Fla. 3d DCA 2015).
4. Malleiro v. Mori, 182 So.3d 5, at 6.
5. Ibid., at 7.
6. Fla. Stat. Section 732.502(2).
7. Fla. Stat. Section 732.502(1).
8. Fla. Stat. Section 732.502(2).
9. See Malleiro v. Mori, 182 So.3d, at 9.
10. Fla. Stat. Section 733.205(1).
11. Malleiro v. Mori, 182 So.3d., at 9.
12. Ibid., at 10.
13. Ibid., at 10.