Many people compose their own estate planning documents, especially today with the multitude of resources available to obtain templates and guidance. However, estate planning remains a detailed task that can be complex. In particular for the last will and testament, there are certain requirements which must be met for the document to be valid and thus for your wishes to be recognized. The following are some major areas that become common pitfalls for will drafters:
The Personal Representative
Florida law requires that the personal representative you choose must be either a Florida resident at the time of your death or blood relative. adopted child. parent. If the personal representative you choose is not one of the enumerated relatives, they must be a Florida resident at the time of your death or they will not be allowed to serve.
It’s hard to envision how long after drafting your will it will become effective. This means there is a possibility your choice of personal representative and beneficiaries may not be alive or capable of serving their role when the time comes. When designations fail, the court must look to replace them. You can prevent this from occurring by listing a secondary person if your primary predeceases you, is incapacitated at the time of your death, or declines the appointment you had for them.
Your will must be executed properly in order to be valid, this means the signatures and witnessing must be completed exactly as Florida law requires.
- The will must be signed by the testator or another person at the testator’s direction and in their presence
- The will must be signed at the end, and
- The will must be signed in the presence of at least two attesting witnesses who sign in the presence of the testator and each other
The Elective Share
The elective share is a principle, written into Florida law, that the decedent’s spouse should receive a minimum share of the estate, at least 30%. If, under the estate planning documents, the surviving spouse would receive less than 30%, that spouse may “elect” against the estate to receive their share. To calculate the estate and what the surviving spouse should receive, a certain group of assets are counted forming what is called the “augmented estate”. A spouse can waive their right to the elective share but only in the manner specified in the Florida Statutes.
If you are planning to devise a small amount of assets to your spouse, it is advisable to seek the counsel of an experienced estate planning attorney. The application of the elective share can dramatically change the plans for your assets and property as outlined in your will.
When in Doubt, Seek Counsel
The validity of your will is a big deal. You don’t want to spend time and energy composing a crucial document to your legacy and to your family that is not recognized by the probate court. If you are working on a Last Will and Testament on your own, the experienced estate planning attorneys of Oldham & Delcamp are available to take on the process for you.