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Mistake: Life changes—marriages, divorces, births, deaths—yet many people don’t revisit their wills, leading to outdated or unintended distributions.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
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.
Poor Communication
Surprises in estate plans can lead to disputes. Consider discussing your intentions with beneficiaries to set clear expectations.
Not Having Contingent Beneficiaries
If a named beneficiary predeceases you and no alternate is listed, that portion may pass under intestate laws.
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:
Initial Consultation: We learn about your family, finances, and concerns.
Document Preparation: This may include a will, trusts, powers of attorney, healthcare directives, and more.
Periodic Reviews: We encourage clients to revisit their plans regularly or after significant life changes.
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.
