Florida probate is the legal process of settling the estate of a deceased Florida resident. It involves identifying and gathering the assets of the decedent, paying their debts and taxes, and distributing the remaining property to their heirs or beneficiaries.
Sounds simple, right? Well, not so fast. Probate can be a complex and lengthy procedure, especially if the decedent did not leave a valid will, or worse, left a poorly drafted one.
Keep on reading to learn how to avoid having your will eaten by probate and create a solid estate plan that will protect your legacy and your loved ones.
What Makes a Will Valid in Florida?
A will is a legal document that expresses your wishes regarding how you want your property to be distributed after your death. It also allows you to name a personal representative (also known as an executor) who will be in charge of administering your estate and carrying out your instructions.
However, not every will is valid in Florida. To be valid, a will must:
- Be in writing. Oral or handwritten (holographic) wills are not recognized in Florida.
- Be signed by the testator (the person making the will) at the end of the document. The testator must be at least 18 years old and of sound mind.
- Be witnessed by two competent persons who are present when the testator signs the will. The witnesses must also sign the will in the presence of the testator and each other.
- Not be the result of fraud, duress, undue influence, or mistake.
If a will does not meet these requirements, it may be challenged in court and declared invalid. This means that the decedent’s estate will be distributed according to Florida’s intestacy laws, which may not reflect their true wishes.
What Makes a Will Poorly Drafted?
Even if a will meets the formal requirements for validity, it may still be poorly drafted and cause problems during the probate process. A poorly drafted will is one that contains errors, ambiguities, inconsistencies, or omissions that make it difficult or impossible to execute.
Some examples of poorly drafted wills are:
- A will that does not clearly identify the beneficiaries or their shares of the estate.
- A will that does not name a personal representative or an alternate one in case the first one is unable or unwilling to serve.
- A will that does not provide for contingencies, such as what happens if a beneficiary dies before the testator or disclaims their inheritance.
- A will that does not address potential conflicts of interest, such as when a beneficiary is also a witness or a personal representative.
- A will that does not comply with the applicable laws and regulations, such as those regarding spousal rights, homestead property, or creditor claims.
A poorly drafted will can lead to disputes among the beneficiaries, challenges from creditors or other parties, delays in the probate process, or even litigation. These outcomes can result in additional costs, stress, and frustration for everyone involved.
How You Can Avoid Having Your Will Eaten Alive by Florida Probate
The best way to avoid having your will deemed invalid is to have it drafted by a qualified and experienced estate planning attorney to ensure it is clear, comprehensive, and customized.
However, an attorney can also advise you on other estate planning tools that can complement your will and help you achieve your goals, such as:
- A living trust:
This is an entity that holds property for the benefit of one or more individuals. You can create a trust during your lifetime and transfer some or all of your assets to it. You can also name yourself as the trustee (the person who manages the trust) and retain control over your property while you are alive and competent. Upon your death, the trust assets will pass directly to your beneficiaries without going through probate.
- A durable power of attorney:
This is a document that authorizes another person (your agent) to act on your behalf in certain matters. You can create a power of attorney that becomes effective immediately or only when you become incapacitated. A durable power of attorney can allow your agent to handle your financial affairs, such as paying bills, managing accounts, or selling property, if you are unable to do so yourself.
- A healthcare surrogate designation:
This is a document that names another person (your surrogate) to make medical decisions for you if you are unable to do so yourself. You can also specify your preferences regarding life-sustaining treatment, organ donation, or other healthcare issues in this document.
- A living will:
This document expresses your wishes regarding end-of-life care, such as whether you want to receive artificial nutrition and hydration, pain relief, or resuscitation, if you are in a terminal condition or a persistent vegetative state. A living will can help your surrogate and your healthcare providers honor your choices and respect your dignity.
We Can Help You Draft Your Will
At Jurado & Associates, P.A., we are passionate about helping our clients create effective and personalized estate plans that meet their needs and goals. We have the knowledge, experience, and skills to draft high-quality wills and other estate planning documents that will withstand the scrutiny of Florida probate.