In our firm we are often met with the question whether a German hand-written will without two witnesses to the signature of the testator is valid in the United States. Generally, a hand-written will in almost all states of the USA must be signed by two or three witnesses in order to be accepted. This is of course completely uncommon in Germany.

The American legal system is structured differently than the German legal system. The individual states of the USA retain a significantly higher regulatory freedom towards the Federal Government than the German Federal States have towards the German Federal Government. Following this premise, a law was passed in the USA for the standardization of estate matters, which provides the individual states with recommendations for implementation. This "Uniform Probate Code" ("UPC") also addresses the question of the recognition of "foreign wills" in article 2-506. According to this, it is sufficient for the recognition of a foreign will as formally valid if said will was either prepared according to the laws of the place of preparation of the will or according to the laws of the place of residence, usual domicile, or citizenship of the testator at the time of the preparation of the will or at the time of his/her death. In article 2-502 (b), the UPC states that a will is valid as a hand-written will when it is composed in substantial parts in hand-writing and signed by hand.

The individual states of the USA are free to implement the UPC without changes, implement it in a modified form, or to ignore it completely. For example in the state of New York a will that is hand-written by the testator is invalid, unless it is recognized as formally valid according to the rules of recognition of foreign wills. Article 3-5.1 (c) and (d) of the "Estate, Powers and Trusts Law" ("EPTL") state with regards to "foreign wills" that such are recognized if they were either prepared according to the applicable laws at the time of preparation at the place where the will was prepared, or according to the laws applicable at the time of preparation or death at the place of residence of the testator. A German hand-written will without witnesses is therefore to be considered formally valid in the state of New York.

In the state of Florida, where a lot of Germans have purchased homes and therefore have these to bequeath, the legal situation with regards to Florida real estate assets in an estate is quite different:

Florida did not implement the UPC with regards to hand-written documents. There is no regulation with regards to foreign wills, which changes the general rule that a hand-written will is to be authenticated by two witnesses. Accordingly, there is a ruling by the District Court of Appeal of Florida, Second District (Schula v. Salathe, 703 So.2d 1167 (1997)) which specifically finds that a German hand-written will (without witnessing of the signature by third parties), which is formally valid according to German law, is not recognized in Florida -where Florida law is applicable- and that the rules of intestate succession are to be applied.

Because of this, it is imperative that German home owners in Florida prepare a will which is valid according to Florida law, if they wish to actively decide who should inherit their Florida assets.

We offer our clients comprehensive advice and support with regards to the formal validity of a will as well as with regards to the implementation. Other important points of consideration are the German "Pflichtteil" ("Compulsory Share According to German Law") and in particular the issue of international taxation.

Carl Christian Thier (admitted in Germany and New York)

John L. Urban (admitted in Florida and Georgia)