Avoid These Common Will Mistakes Under Florida Law

Top 5 Mistakes Floridians Make When Writing a Will (and How to Avoid Them)

A Last Will and Testament is a cornerstone of estate planning, yet many Floridians overlook crucial details when creating one. Whether drafting a simple will or a more comprehensive plan, inevitable missteps can invalidate your intentions or spark disputes among heirs. At Smith Cors Law, we’ve seen how these avoidable errors cause stress and expense for families. Below, we highlight the top 5 mistakes people make and share guidance on building a valid, well-considered will that aligns with Florida law.

1. Failing to Meet Florida’s Execution Requirements

Mistake: Some people assume a handwritten note or typed document with only their signature is legally binding. But Florida statutes are strict about formalities.

Florida Law Mandates:

• The will must be in writing.

• The testator (person making the will) must sign at the end of the document.

• Two competent witnesses must also sign in the testator’s presence and in the presence of each other.

• A self-proving affidavit, while not required, streamlines probate by eliminating the need for witnesses to appear in court.

How to Avoid:
Use the proper witnessing procedure. If possible, execute the will in the presence of a notary and two witnesses, then add a self-proving affidavit. This ensures your will’s validity and reduces delays.

2. Forgetting to Update After Major Life Events

Mistake: Life changes—marriages, divorces, births, deaths—yet many people don’t revisit their wills, leading to outdated or unintended distributions.

Potential Consequences:

• A new spouse might claim an elective share if they’re not mentioned.

• Children from a subsequent marriage may be overlooked.

• Divorce can void specific provisions naming an ex-spouse, creating confusion or gaps in the will.

How to Avoid:

• Periodic Reviews: Check your will every three to five years.

• Post-Event Updates: Any marriage, divorce, birth, or significant financial change triggers an immediate review.

3. Overlooking Digital Assets and Beneficiary Designations

Mistake: Relying solely on the will to handle everything, including assets that pass outside probate.

Types of Assets That May Bypass a Will:

• Life Insurance: Pays directly to named beneficiaries.

• Retirement Accounts: IRAs, 401(k)s, or pensions distribute to the individuals listed on beneficiary forms.

• Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: Pass directly to the named party.

Digital Assets (email, social media, cryptocurrency) also require separate directives to ensure a personal representative can access them.

How to Avoid:

• Review Beneficiary Forms: Make sure they match your current wishes.

• Create a Digital Asset Plan: Provide instructions for managing accounts and passwords securely.

4. Not Accounting for Florida Homestead Restrictions

Mistake: Attempting to devise homestead property in ways that conflict with Florida’s constitutional protections for a surviving spouse or minor children.

Homestead Rules:

• You typically cannot leave the primary residence to anyone other than your spouse if you have minor children, unless the spouse joins in the deed or there’s a valid marital agreement.

• Surviving spouses have statutorily defined rights (e.g., a life estate) in the homestead property.

How to Avoid:

• Homestead Planning: Consult an attorney to structure your will or trust so it doesn’t violate restrictions.

• Marital Agreements: If needed, have your spouse waive or modify homestead rights in a properly executed prenuptial or postnuptial agreement.

5. Writing a DIY Will Without Professional Guidance

Mistake: Relying on online templates or outdated kits that may not reflect current Florida statutes or your unique circumstances.

Common Issues:

• Incorrect witnessing or notarization.

• Vague language leading to will contests.

• Failure to align with other estate planning documents, like trusts or beneficiary forms.

How to Avoid:

• Legal Review: Even if you draft a preliminary outline, have a Florida-licensed attorney verify compliance with state laws.

• Personalization: A one-size-fits-all template rarely addresses special needs, blended families, or complicated assets.

Additional Pitfalls and Tips

1. Naming Unsuitable Personal Representatives
   
   

• Florida law requires that a personal representative (PR) be a Florida resident or closely related to the decedent. Name a responsible PR who meets these qualifications.

2. Poor Communication
   
   

• Surprises in estate plans can lead to disputes. Consider discussing your intentions with beneficiaries to set clear expectations.

3. Not Having Contingent Beneficiaries
   
   

• If a named beneficiary predeceases you and no alternate is listed, that portion may pass under intestate laws.

4. Failing to Address Debts
   
   

• Clarify which assets or funds should be used for debts and taxes to avoid burdening unintended beneficiaries.

How Smith Cors Law Can Help

At Smith Cors Law, we do more than just draft wills. We provide comprehensive estate planning services, ensuring every element—from your homestead property to your digital assets—is accounted for. Our process typically involves:

1. Initial Consultation: We learn about your family, finances, and concerns.

2. Document Preparation: This may include a will, trusts, powers of attorney, healthcare directives, and more.

3. Periodic Reviews: We encourage clients to revisit their plans regularly or after significant life changes.

4. Coordination with Other Professionals: Where necessary, we work with financial advisors or CPAs to align your legal documents with broader economic goals.

Frequently Asked Questions

Q1: What happens if I die without a will in Florida?
Answer: Your estate is distributed under Florida’s intestacy laws, which prioritize spouses and children. If none exist, distant relatives may inherit. This could run counter to what you would have wanted.

Q2: Is a handwritten will valid in Florida?
Answer: Florida does not recognize holographic wills that are solely in the testator’s handwriting and not properly witnessed. If a handwritten will meets the state’s witness requirements, it may be valid, but it’s risky.

Q3: Can I disinherit a child or spouse?
Answer: Generally, yes for a child, but Florida’s elective share and homestead protections limit disinheriting a spouse unless there’s a valid agreement or other statutory exception.

Conclusion

Drafting a will in Florida is both an act of foresight and love, ensuring your property and loved ones are protected after you’re gone. Yet overlooking key requirements or skipping legal guidance can undo your best intentions. By avoiding these five common mistakes, reviewing your estate plan periodically, and taking advantage of professional legal counsel, you can craft a will that respects Florida’s legal framework and secures your legacy.

If you’re ready to create or revise a will, contact Smith Cors Law. We’ll ensure your estate plan aligns with your objectives while adhering to every nuance of Florida law.

Disclaimer: This post is intended solely for informational use and does not replace personalized legal advice. No attorney-client relationship is formed by reading or responding to this post. Please consult a licensed Florida attorney for guidance specific to your situation. No aspect of this content has been approved by the Supreme Court of Florida.

Estate Planning for Florida Residents with Property in Multiple States

 

Handling Out-of-State Property: Florida Estate Planning for Snowbirds and Beyond 

Florida’s sunny climate attracts people from across the country, many of whom split their time between multiple states. Whether you own a second home up north, a vacation condo in another region, or business property outside Florida, multi-state assets complicate estate planning. Ensuring a smooth transfer of out-of-state property requires specific tools and a clear strategy.

The Concept of Ancillary Probate

When a Florida resident passes away owning real property in another state, that property may trigger ancillary probate in the other jurisdiction. This means two probate processes:

1. Primary Probate in Florida for in-state assets.
   
   

2. Ancillary Probate in the state where the additional real property is located.
   
   

Ancillary proceedings can be time-consuming and add to the legal fees, paperwork, and stress of your family’s experience.

Strategies to Avoid or Streamline Multiple Probates

1. Use a Revocable Living Trust
   
   

• Placing out-of-state real estate into a Florida revocable trust can help bypass probate in the other state. The trust, rather than you personally, holds title to the property. Upon the successor trustee's death, the property can be transferred or sold without the need for a separate court case.
  
  

2. Establish an LLC or Business Entity
   
   

• Some individuals prefer holding real property through an LLC. If properly structured, transferring or selling the LLC’s ownership interest may avoid the need for ancillary probate in the other state. Consult an attorney to ensure compliance with both Florida law and the other state’s laws.
  
  

3. Joint Ownership with Right of Survivorship
   
   

• In certain cases, adding a co-owner with rights of survivorship can allow property to pass directly to the surviving owner. However, this method can raise gift tax considerations or complicate overall estate planning, so weigh the pros and cons with professional advice.
  
  

Tax Implications

Owning property in multiple jurisdictions can lead to additional tax concerns:

• State Inheritance Taxes: Some states have inheritance or estate taxes that Florida does not. If your out-of-state real estate is subject to these rules, you’ll want to plan accordingly.
  
  

• Capital Gains: Selling property in another state may trigger local taxes, depending on how long you’ve owned the property and its value growth.
  
  

• Federal Estate Taxes: While Florida doesn’t levy its own estate tax, the federal estate tax might apply to larger estates if they exceed federal exemption thresholds.
  
  

Coordinating Attorneys in Multiple Jurisdictions

If you retain property in another state, it may be prudent to involve an attorney from that region when drafting or updating your Florida estate plan. Florida counsel can coordinate with out-of-state counsel to ensure all legal requirements align, from deed transfers to disclaimers of interest.

Avoiding Common Pitfalls

• Improper Deeds: If you move a property into a trust or LLC, ensure the deed is correctly executed and recorded. Missing or incorrect filings lead to confusion down the road.
  
  

• Inconsistent Beneficiary Designations: If your estate plan states one thing but joint ownership or transfer-on-death deeds indicate something different, the latter may take precedence. Confirm consistency across all documents.
  
  

• Failure to Revisit: Laws change over time, particularly in areas such as trusts, LLC governance, and tax exemptions. Periodically review your multi-state plan.
  
  

Conclusion

Owning out-of-state property requires a comprehensive approach to estate planning. Florida’s probate rules won’t spare your heirs the hassle of ancillary proceedings if you haven’t implemented proactive solutions such as trusts or LLCs. By properly titling real estate, staying mindful of state-specific tax implications, and coordinating with legal expertise, you can help loved ones avoid navigating multiple court systems during a time of grief and distress. Consult a qualified attorney to ensure your multi-state assets pass efficiently, reflecting your true intentions.

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Disclaimer: This information is for general educational purposes only and does not constitute legal advice. For individualized recommendations, please consult a licensed attorney familiar with Florida law and the laws of any other relevant jurisdictions. No aspect of this material has been approved by the Supreme Court of Florida.