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Estate administration & probate law excludes some foreign wills

There has been a great influx of foreign-born persons into the United States in recent decades, including into Georgia. That population increase has raised legal issues regarding the validity of wills executed by those persons in their country of origin and presented for probate here in the United States. The law of estate administration & probate here and in other jurisdictions accepts those wills as effective for probate unless they contain a fatal defect under the state's laws.

A neighboring state recently addressed the issue in an appellate case. The court ruled that the foreign will was barred from probate because it was unsigned, not witnessed and held to be an invalid nuncupative will. The court reasoned that the will would normally be admitted for probate in the United States if it was legal in the country where it was executed. However, the court noted that there are two exceptions to that rule.

The first exception relates to holographic wills. Generally, hand-written wills are not accepted for probate under state probate laws. Secondly, a nuncupative will, made orally and not properly reduced to a legal verbatim writing, is also invalid under state law.  

In that case, the testator executed a valid will here in the United States. When she died, it was offered for probate in Florida. However, objectors came forth with a will that the decedent had written four months later in Argentina that changed everything from the earlier will. Normally, the later will prevails because it is the most recent version of the testator's wishes.

However, if the later will has a fatal flaw under a state's law, it will not be accepted for probate and will not supersede the earlier will. Thus, under the estate administration & probate law of Georgia and other states, a foreign will may normally be admitted to probate in a state court in this country despite not meeting all technical requirements under the state's laws. If the foreign will is holographic or nuncupative, however, it will usually fail to qualify for acceptance to probate in a state court in this country.

Source: wealthmanagement.com, "Foreign Will Barred From Probate as a Nuncupative Will", John F. DeStefano, April 20, 2016

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