The Drawbacks Of Will Planning
Knowing that probate can be a long and challenging process for their heirs, many people try to write their own wills or retain a lawyer to draft a will that complies with the formalities specified in the Florida Probate Code. However, there are significant pitfalls of will planning that you should recognize. These documents can create special problems that might not occur if you created a trust. Serving clients throughout Brevard County, the experienced lawyers at Cantwell & Goldman find that trusts are often preferable to wills when considering the goals of estate planning and asset distribution.
Typical Complications of Wills
Although some lawyers tout the importance of drafting a will to avoid probate, many clients do not realize that probate is not completely avoided by this document. Instead, the will must still be filed in probate court and transferred through the probate process. This process can be expensive in Florida-costing around five figures-and thereby deplete the estate. Unlike many trusts, wills make no provision for disability. Since many people nowadays become disabled before they die, the court must get involved and appoint a guardian. This proceeding also can deplete your estate. The guardian may not be somebody you trust to follow your wishes or even know.
Moreover, most testators draft their wills years before their death, but the content of the will cannot be contested until after the testator has passed away. This means that there may be numerous changes in family relationships by the time this happens. Wills may specify executors who are not the people they would have chosen before the time of death. Grandchildren may have been born or adopted who are not taken into account in your will. Additionally, rifts may have developed between the testator and the beneficiaries. Florida law permits a surviving spouse and certain surviving children who were omitted from a will to receive a share of your estate, even if they were omitted by your own wishes.
Many people who pass away in Florida have relatives in other states or foreign countries. Faraway relatives must be given notice of the court proceeding for the will to be executed. It may be expensive or impossible to locate them.
During the court proceeding, there may be proof problems. These can tie up real estate or stock, making sales slow or untimely, and resulting in funds not being distributed, even though your surviving family members may desperately need them.
Unlike a trust, which can be handled and followed privately, wills are filed in court and become public records. This means that anybody can order a copy of your will at the courthouse. They can look at your property and determine who received or will receive it. Since the will is public and notice must be given to heirs to whom you may not have bequeathed anything, there is a strong likelihood of a will contest.
When a legal proceeding is underway, the probate judge is in charge. The court must act in accord with the law and ensure that your will followed all the formalities perfectly. Generally, the probate judge’s job is not to examine your intent or interests but to ensure all legal requirements are met.
With the proliferation of online tools to draft your own will, you may be tempted to take that step. However, there are several precise requirements that must be met for a will to be enforceable. For example, under section 732.502 of the Florida Statutes, it must be signed at the end by the testator in the presence of two witnesses. These people must be in the presence of the testator as well as each other in order for the will to be valid. Many people do not realize that the witnesses must be physically present with the testator and each other. When they sign separately, the document is invalid. However, this issue would not arise until the testator is already dead and the will is contested.
Discuss Your Will and Trust Questions with a Cocoa Lawyer
If you live in the Cocoa area and want advice on properly creating a will or trust, a knowledgeable attorney can help. At Cantwell & Goldman, we are familiar with the nuances of this complex legal area and will be happy to explore the details of your situation with you. Contact us at 866-583-9129 or via our online form.