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/