In this article I will attempt to cover some of the most important mistakes that can endanger your Will in Florida. Creating a Florida Will may seem like a simple task. Search for Florida Last Will and Testament and you will get a bunch of websites offering you to prepare your own Florida Will.
Before I start listing some of the common mistakes in DIY Florida Wills, I want to discuss who should have a Will in Florida and when it might be proper to attempt to draft your own Will.
There are two situations where it is necessary to have a Will in Florida. First situation is when you have minor kids and the second situation is when you have assets in your name.
When you have minor kids the Florida Will is the place where you want to designate any guardian for your minor kids in the unfortunate event that both parents were to pass away or if one of the parents is not physically and mentally capable of having custody of the minor child.
Although a court in Florida is not obligated to appoint the person that you nominate, so long as the person is qualified to serve as a guardian, most judges in Florida will appoint the person you nominate under your Will in Florida. Absent this designation, a judge will appoint someone who he or she believes serves the best interest of the child.
The second situation is when you have assets titled under your name. Some assets in Florida do not pass through the Florida Will, but by operation of law. These include assets that have a proper beneficiary designation, for example bank accounts, IRA’s, and rights of survivorship property. However, it is often the case that one of the beneficiaries under the account predeceases you and you never get around to updating it or you never added a beneficiary in the first place.
Absent a beneficiary designation or a Florida Will, Florida’s Intestacy Statute will dictate who are the rightful heirs of your property.
I seen so many mistakes with people drafting their own wills in Florida that I highly recommend against trying it yourself. Although it may seem like a simple document, and you may just want to list who you want to get your assets, there may be dire consequences if you do not know or understand Florida’s inheritance laws.
I understand that dealing with an attorney can sometimes be a daunting task. However, I assure you that estate planning attorneys are usually very friendly and family minded individuals.
I also understand that paying an attorney to create a Will in Florida can sometimes be an economic challenge, but that should not deter you from seeking assistance in other places. Most counties in Florida provide pro-bono services for individuals that cannot afford to hire their own lawyer. In Miami-Dade County, Dade Legal Aid provides representation for low-income individuals and runs clinics where many attorneys in the community participate.
Do not let the price deter you from seeking or talking to an estate planning attorney. You can call my office at any time and I will take the time and effort to understand your situation and find any way that I can help you. My estate planning consultations are always free of charge to you.
The most common mistake that I see with DYI Wills in Florida is improper execution. You go and print a DIY Simple Will from one of the free forms out in the internet. You might even pay a company like LegalZoom to draft your document. Although you see that there is a notary block and witnesses’ spaces, you sign it and afterwards you find witnesses to sign the document and a notary to notarize the document. You do all of this in different steps.
Florida adheres to strict compliance when executing Wills. If they are not executed property, the Will is not going to be valid and the Florida Intestacy Statute will apply. Check my Last Will and Testament Ultimate Guide for more information on proper execution.
Another mistake that I have seen is that the witnesses to the Will do not sign in their allotted space or do not sign at all. If only you sign the Florida Will then it will be considered to be a Holographic Will and they are not valid in Florida.
If the Florida Will is not executed property, then you run the danger that an interested party comes later on when you pass away and tries to invalidate the Will. Not only can this cause your beneficiaries a lot of headaches and frustration, your intent and wishes might be frustrated if the person is successful invalidating the Will.
Related to Mistake #1 above, if you take a piece of paper and hand write or type your wishes and sign it at the end, that will not be considered to be a valid Will in Florida. Florida does not recognize Holographic Wills, even if they valid in other jurisdictions. In order for a Florida Will to be valid it must be executed correctly according to Florida Law.
This also applies to changes in your Will. When beneficiaries come to me to probate a Will, a lot of the times the deceased person made handwritten changes to the Will and just signed or initial next to the change. In order to modify a Florida Will, you must follow the same execution requirements as if you were signing your Will to be valid.
Finally, just expressing your feelings and verbally telling somebody else what you want alone is not enough. The Florida Will needs to be in writing in order to be enforceable.
You signed your Florida Will correctly, however, you stated in your Will that your primary residence should be sold and the proceeds of the sale to be distributed equally to your children. This is one of the worst things you can do in your Florida Will.
In Florida your primary residence is your Homestead. Homestead provides protection against your creditors with limited exceptions. However, if you dictate that the Homestead is to be sold and the proceeds to be distributed to the beneficiaries, the homestead protection will be lost and at that point your creditors can attack the proceeds to recover any debts owed to them. In many situations, like the one explained in Mistake #5 can be catastrophic.
In Florida, you can only transfer your Homestead in a Will or a Trust to your spouse if you are married and if you have minor kids any transfer of the Homestead in a Will or a Trust will be invalid. Florida wants to protect the interest of minor children. However, if you have no minor children or if you are not married, then you can transfer your Homestead in a Florida Will or a Trust to whomever you want, subject to MISTAKE #5.
If you are doing your own DIY Florida Will you may state that your Homestead goes to the kids of a previous marriage. However, if you are married, that devise will fail and your spouse will receive a life estate in the Homestead or can elect to take a 50% interest in the property with your children. Check out my Homestead Article to learn further.
Homestead law can be complicated and the advise of an estate planning attorney is necessary.
A lot of people receiving Medicaid do not know that the Agency of Health Care Administration (“AHCA”) in Florida will try to collect any funds spent on your behalf after age 55. However, AHCA is not able to recover against property not passing through Florida probate, exempt property like Homestead, or if there is a surviving spouse.
The Medicaid claim can be either small or huge depending on how much services they provided you or whether you were in a nursing home. I seen claims as high as $250,000. If you commit Mistake #3 above, then your Homestead protection will be lost and now AHCA will be able to recover from the sale of the Homestead. This could leave your beneficiaries with no inheritance to collect from.
Another mistake with regards to Medicaid and Homestead is who you designate as your beneficiary of the Homestead. If you list a friend or someone not related to you by blood, which you have not adopted, then the Homestead protection will be lost as well and AHCA will be able to recover from the asset any funds owed to them.
If you are receiving Florida Medicaid then I highly encourage you to speak to an estate planning attorney.
The list above is not meant to be all inclusive. There are many more mistakes that can take place when drafting your own DIY Florida Will.
If you have any questions or if you are interested in creating your Florida Will the best way to contact me is either calling my office at (305) 489-1415 or completing the Contact Form above and I will get back to you immediately.
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