Florida Trust & Probate Attorneys Blog
By: Jacqueline R. Bowden, Weston Wills Attorney
Do it yourself (or “DIY”) projects are becoming common in today’s highly technological age, especially when considering websites like Pinterest and Houzz. In most cases, including home projects, an individual may have several chances to complete a task correctly. Unfortunately, when it comes to drafting a Will, the mistakes are usually not found until it’s too late.
The following is a list of 5 Common Mistakes found when people try the DIY method for drafting Florida Wills. These mistakes can often be avoided by having an experienced Miramar Wills Attorney draft a Will for you:
- Leaving Too Much with Too Little
Clients (and even some attorneys) often forget to take into consideration future expenses which can dwindle their estates.
For example, Jane has a $500,000 estate when drafting her will. Jane bequests $100,000 to her alma mater as a specific distribution and the remainder to be split between her four children. However, upon Jane’s passing she only has $50,000 left in her estate which will be used to satisfy her specific distribution, leaving her children nothing. Of, course Jane never intended this result.
An experienced Miramar Wills attorney can ensure that you properly distribute your assets according to your wishes.
- Unqualified Personal Representative
Often time’s people will name a friend or former attorney to act as Personal Representative of their estate. However, if the friend or former attorney does not reside in Florida at the time of the decedent’s death, such person will not be qualified to act as Personal Representative. In order to serve as Personal Representative, the person so appointed must be of age and must also be a resident of Florida at the time of the decedent’s death. Fla. Stat. §733.302. There are a few exceptions for non-residents to serve as Personal Representative. For these exceptions read our blog: When Can A Non-Resident Of Florida Serve As The Personal Representative For A Probate Estate?
- Directing the Sale of Your Protected Homestead
One great advantage of owning property in Florida is the homestead protection. However, many people are not aware that the Homestead creditor protection may continue after death. Art. 10, § 4, Fla. Const. In order for this valuable protection to continue after death, such homestead must pass to the decedent’s surviving spouse or legal heirs. A common issue often arises when an individual mistakenly directs the personal representative to sell all of the estate’s assets and distribute the cash. An experienced Miramar Wills attorney knows that such instruction may destroy your homestead protection, making the proceeds vulnerable to creditor claims.
- Improper Homestead Devise
This is a common problem when there are children from prior marriages and the Testator wants to devise the homestead to his or her new spouse. In Florida, a decedent’s homestead cannot be devised if the decedent is married or has minor children at the time of death. Art. 10, § 4, Fla. Const. If the decedent died intestate, the surviving spouse has two options: (1) elect a life estate in the homestead, with a vested remainder going to the lineal descendants in being at the time of the decedent’s death, per stirpes; or (2) elect to take an undivided one-half interest as a tenant-in-common in the property, with the remainder vesting in the decedent’s descendants at the time of death. Fla. Stat. §732.401(2).
- Improper Execution
In most scenarios a DIY Will is executed in the following manner:
Testator completes the blank spaces on the form and signs. Testator then finds two friends that can witness and each sign on different occasions. Finally, the Testator will ask a friend who is a notary to notarize the will.
Not having the correct number of witnesses or failing to sign in the presence of the witnesses are common ways to invalidate a will. Preprinted forms will provide all necessary spaces for signatures yet fail to explain the formalities in which the will must be signed.
The companies that offer DYI wills try to make it sound easy to draft “simple” Florida wills. It is not easy. Even a “simple will” requires careful analysis of often complex legal issues. While drafting your own will using a pre-printed form may save you some money, doing so may lead to a flood of unforeseen legal issues for you and your family members – and big costs down the road.
This article explains only some of the most common mistakes found and is not all inclusive. For more information, contact Jacqueline R. Bowden, Miramar Wills attorney, at (305) 556-5209 or JBowden@Raricklaw.com.
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miramar Will attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.