Florida Probate Litigation Lawyer Blog
Aside from the well-known concerns with do-it-yourself wills, there are a number of common mistakes people who seek only ancillary professional advice may fall victim to when devising their wills. Of the most frequent mistakes, four in particular are perhaps the least likely for a layman to anticipate. Each of these four mistakes may potentially lead to an outcome that is contrary to the wishes of the testator with regard to distribution of the assets of their estate, and may result in the testator’s loved ones receiving little or no inheritance.
The first of these mistakes is failing to abide by Florida’s requirement that the executor of an estate, more commonly referred to as a “personal representative” in Florida, be a resident of Florida or be subject to suit in Florida at the time of the decedent’s passing. The main reason this particular mistake is so common in Florida is because most states do not have such a requirement. Yet, Florida residents-many of whom are only part-time residents-are particularly at risk of failing to adhere to this requirement, as many such individuals have an attorney from their state of origin prepare their estate plan, and sometimes even designate that out-of-state attorney to serve as the personal representative of their estate.
Another common mistake tends to be a product of do-it-yourself wills and results from a lack of understanding with regard to the important difference between (1) devising one’s homestead and (2) providing that the personal representative of the estate sell the homestead and distribute the profit therefrom. If a testator directs that the homestead be sold and the proceeds distributed among his or her descendants, doing so will lead to loss of the homestead exemption from creditors, which will potentially result in an unintended dissipation of estate assets.
Perhaps the most common mistake results from testators leaving specific cash amounts to their descendants. Ultimately, it is nearly impossible to know specifically how much an estate will be worth, as expenses like outstanding medical bills often deplete the total value of an estate before death. Once the bills have been deducted from the estate, there is often less money than the testator had anticipated. This often leads to secondary and subsequent beneficiaries not receiving the amounts that the testator had intended.
Lastly, Florida residents must keep in mind that, under Florida law, courts will presume that a will has been revoked where an original copy of the will cannot be located. The unfortunate reality is that relatives of the deceased will frequently hide or destroy a will if they will receive a greater benefit if no will is found and the estate is distributed by the Florida intestacy statutes. For this reason, it is advisable for a testator to leave the original will with his or her attorney, rather than in a location where it can be discovered by those who may act inappropriately out of their own self-interest.
Many things which must be taken into consideration when devising a will, some of which may not be readily apparent to those unfamiliar with the many facets of Florida law. Therefore, whether creating just a will or a comprehensive estate plan, it is best to seek the assistance of experienced legal professionals, such as the attorneys at Chepenik Trushin LLP. Please do not hesitate to contact us for an initial consultation.
