Blogs from December, 2011

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Recognition of a German Will in the USA (formal validity)

This article provides an introduction to the recognition of German Wills in Florida.

German Wills:  Formal requirement under German law

Under the German Civil Code (“BGB”), the testator can choose between two forms of traditional wills (§2231 BGB): 1) The public or notarized will (§2232 BGB), and 2) the holographic or handwritten will (§2247 BGB). Witnesses are not required for the validity of a holographic or notarized will under German law. Unlike the U.S., witnessed wills are uncommon in Germany.  

State of Florida

According to 732.502 (2), Fla.Stat., a will must be in writing, signed by the testator, and authenticated by two witnesses. A holographic will is without force or effect under Florida law. There is no regulation with regards to foreign wills. However, if the decedent died domiciled in Germany, it may be valid under the applicable terms of the German civil code. Additionally, from the perspective of a German court it may be valid (see the decision of the German supreme court, BGH IV ZR 135/03) and, thus, it may be advisable to sue in Germany.

Recognition of a German hand-written will (holographic will): A German hand-written will not be authenticated by two witnesses is, therefore, to be considered formally invalid in the state of Florida (Schuler v. Salathe, 703 So.2d 1167 (1997)) as far as Florida law applies.

Recognition of a German notarial will (notarized will):  A German notarized will not be authenticated by two witnesses is, therefore, to be considered formally valid in the state of Florida as far as Florida law applies.

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