Florida Probate Litigation Lawyer Blog
I Already Have a Will; When Should I Update My Estate Planning Documents?
When someone executes a valid will, some people assume that if their wishes do not change, they should never have to revisit their estate plan. However, there are certain common events in life that should cause you to review or update your estate planning documents.
Marriage/Divorce: A surviving spouse is entitled to a percentage of a decedent’s estate, regardless of whether the decedent included the spouse in the decedent’s will. Interestingly, the amount that a surviving spouse is entitled to may vary depending on whether the will was executed before or after the marriage. If you execute a will and subsequently marry, the spouse will receive a share equal to what he or she would have had, had the testator died intestate. This typically amounts to either one-half of the estate (if there are children of the decedent who are not children of the surviving spouse), or the entire estate (if there are no surviving children, or if the surviving spouse and the decedent are the parents of the only surviving children). Fla. Stat, Sec. 732.301 and Sec. 732.102. In either case, this is more than the amount that a surviving spouse is entitled to under the “elective share” which is thirty percent (30%) of the decedent’s estate.
Divorces affect wills in a different way. When someone executes a will while married, and subsequently gets divorced, the ex-spouse is treated as if he or she had predeceased the decedent. The will is not completely revoked, only the implicated provisions are. In other words, the former spouse will be removed as a beneficiary or as fiduciary. Fla. Stat, Sec. 732.507. Although there are some exceptions, it is best to update your estate planning documents to avoid confusion and/or probate litigation.
Birth of Children/Adoption: As with a subsequent Marriage, a will is not revoked after the birth of a child. Florida’s homestead laws prevent homeowners from completely disinheriting minor children, but adult children can be completely disinherited. However, if one executes a valid will, has a child, and dies, that child will inherit what he or she would have inherited had the decedent died intestate. There are several exceptions to this rule, but it is of course best to update your estate panning documents to clearly reflect your intentions with regard to an after-born child.
Changing Residence: Although wills executed in other states are valid in Florida so long as they were validly executed under the laws of that state, it is best to draft a new will when moving to Florida. Doing so will help establish Florida residency.
Change in Assets: If your assets have substantially increased or decreased, you should revisit your estate plan. Good estate planning documents are tailored to your specific needs and financial circumstances, and if those circumstances change, there can be consequences in income tax, estate tax, and probate avoidance, and even shifts in beneficial interests that were not intended. Furthermore, a new financial situation may provide new planning opportunities that were not available to you when you first executed your estate planning documents. Whenever there is major change in your financial situation, you should contact your estate planning attorney to find out if anything in your estate plan needs to be changed.
Change in Law: Unless you are following the latest cases and updates in the legislature, you will not know when an important change occurs that could affect your estate plan. Even if none of the above situations apply to you, every few years you should contact your estate planning attorney to make sure that everything is up-to-date and that your documents still work the way they were intended to work.
Because of the effect these extrinsic events can have on your estate plan, you should review your will after major life events. If you are interested in more information in how to best effectuate your wishes, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help – Bart Chepenik, 305-613-3548, Brad Trushin, 305-321-4946, we are always available to help you and or your family members.
