Common Mistakes in Wills: Lessons Learned from Recent Probate Cases in Florida

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By Gary M. Landau, Esq.

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Common Mistakes in Wills: Lessons Learned from Recent Probate Cases in Florida | Call (954) 979-6566

Are you considering writing a will? If so, congratulations on making a wise decision no matter what age or stage of life you are in because it can protect your family from the emotional hardship of trying to discern your wishes after your death. According to Caring.com, only one-third of American adults currently have a will, the legal document that determines how you want your finances, home, and other possessions to be distributed to your heirs.

Drafting a will is simple in concept. However, if it is not done according to the laws in the state of Florida, problems can result. This is a major concern because problems generally aren’t discovered until after the will comes into effect–when you are no longer alive to fix them.

South Florida probate lawyer Gary Landau and his Law Office of Gary M. Landau, P.A. have seen their share of problematic wills presented by heirs during the course of a probate. To help you better understand how to devise a legally sound will, his office has compiled the most common mistakes in wills based on more than 25 years of working with clients.

Drafting your will with the help of a knowledgeable probate attorney is critical for avoiding these problems. You can find do-it-yourself will forms online, but problems may result from not having expert help.

Other issues occur because people improperly view their will as a one-and-done proposition. Like any other important document, your will should be reviewed periodically to make sure it still meets your needs.

After reading this blog, feel free to contact us at (954) 979-6566 to schedule a free consultation.

5 Common Mistakes in Wills in Florida

Here are five errors and omissions the Law Office too often sees in Florida wills and ways to avoid them with the help of an experienced probate attorney.

1. Failing To Regularly Update a Will

Marriage, divorce, the birth of a child, adoption, a fallout with friends, or even buying or selling important real estate may require the need to update your will. If for example your document leaves everything to your two grown children but you subsequently have a falling out with one of them, you may want your asset distribution modified. Whenever you have a major life event, you should check that it is reflected in your will.

In addition, attorney Gary M. Landau recommends that everyone dust off their will (or a copy of your will if the original is stored in your attorney’s vault–a smart practice) every five to ten years to make sure it remains current. Perhaps the person you named as your personal representative has moved out of the country (or, if they are not a blood relative, out of the state, which disqualifies them), or maybe it was your brother-in-law and your sister has now divorced him. The Law Office of Gary M. Landau recently probated a will where the main beneficiary had died more than a decade earlier!

2. Assuming a Will Allows Estates to Bypass Probate

People sometimes think that because they have an original, signed will the estate does not need to go through probate. However, in Florida, the courts are in charge of overseeing all probate matters, which means probate is necessary even when a valid will exists (but having such a will makes the process faster and easier).

There are other strategies people can employ to avoid probate if that is important to you. This might include placing all assets in a revocable living trust or designating transfer-on-death beneficiaries for all insurance policies and bank accounts.

3. Bringing One of Your Heirs to Your Meeting with the Lawyer

It may be fine for one grown child to drive their parent to their appointment with the attorney if you will evenly distribute your assets between all of the children. But if you plan to disinherit one of them or to leave more assets to some over the others, it is best to come to the attorney’s office without the child. The reason is if the other siblings contest the will after you pass away, the court might find that the person at the attorney’s office exhibited undue influence on you.

The Law Office of Gary M. Landau often will not draft a will in this situation and instead instructs the person making the will to come back at a later date alone.

4. Not Keeping the Original Will Secure

It’s always a good idea to store your original will in a secure location, safe from fire, water, or other things that can damage the paper. A good option is to keep your original will in the vault of the attorney who drafted it.

You never want to store your will in a bank safety deposit box, because your heirs may have difficulty accessing that box once the bank knows you are deceased. Be sure to let your personal representative or other close friend or relative know that you have drafted a will and where they can find it.

If only a photocopy and not the original will can be found by your heirs after your death, the court will presume that you intended to destroy your will. Your heirs may be able to work around this and get the photocopy admitted to the court, but this is a complicated and potentially costly procedure. Alternatively, the court may act as if you don’t have a will and distribute your assets according to legal statutes.

5. Failing to Comply With State Requirements

Did one of your witnesses forget to sign the will? This seems so basic, but the law office has seen a number of wills with only one witness signature instead of the two required by Florida law.

And in Florida a person cannot disinherit their spouse or minor child from the house they live in, also known as their homestead property, which some people try to do in their will.

An experienced attorney knows Florida law and takes care to ensure all the provisions and executions of the will exactly follow all legal requirements.

What Are the Most Important Things to Know When Making a Will?

When you draft a will in Florida, it should:

  • Name all your beneficiaries, which might be immediate family, other relatives, friends, and/or charities. It’s also important to include backup beneficiaries in case some predecease you.
  • Appoint a personal representative, someone willing and able to handle your estate’s administration and work with the probate attorney to act as a liaison between the beneficiaries and the court. You should also name a backup personal representative in case that person cannot serve.
  • Use clear, simple wording that isn’t subject to misinterpretation or disputes.
  • Include two witness signatures by competent adults who watched you sign the will. Your witnesses must not be beneficiaries or family members of beneficiaries.

How A Knowledgeable Probate Lawyer Can Help Avoid Common Mistakes in Wills

Working with an experienced probate attorney is the most secure way to keep your will legally valid and reflective of your current wishes.

At the time you draft a will, it is also useful to consider whether you should also draft other late-life documents including a living will, healthcare surrogate, and/or a financial power of attorney.

The Law Office Of Gary M. Landau Empowers Florida Residents by Providing Wills and Trusts That Meet Their Needs Through Various Life Stages

Creating a legally sound will and estate plan is one of the most critical actions you can take to provide for your family and preserve your legacy. At the Law Office of Gary M. Landau, we provide comprehensive probate, estate, and retirement planning solutions across Florida.

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the Law Office of Gary M. Landau is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2023. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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