6 Things You Need to Know About Florida’s Last Will and Testament

Florida’s Last Will and Testament. 

One final nod to the deceased. One last chance to determine what happens to property accumulated over a lifetime. The closing chapter on a life and all it accomplished. 

The Will is one of the most fundamental tools in Florida’s Estate Planning toolbox. 

Yes, there are others. Trusts, Joint Accounts, Beneficiary Designations and Intestate Statutes to name a few. 

But the Will, if used correctly, can work to supplement the other tools and catch any assets that may have been missed during the Estate Planning process. Kind of a belts-and-suspenders approach.

Consider the following questions in determining whether all of your assets are properly accounted for in your estate plan:

What is a Power of Attorney?

A Power of Attorney or POA is a document granting one person written authority to legally act on behalf of someone else.  POA's can be used in real estate transactions when one party (buyer or seller) cannot attend the closing.  A third party can be given POA to sign the closing documents on behalf of the absent party.

Florida's Will Reformation Statute Turns Estate Planning Upside Down

Florida's Will Reformation Statute Section 732.615

In 2011, the Florida Legislature revised its Probate Code to allow any interested person to reform a deceased person's Will even when the terms of the Will are unambiguous.  In doing so, hundreds of years of Estate Planning Precedent has been turned upside down.  The new Statute cuts against Florida's strict requirements for creating a valid Will and opens the door for abuse by disgruntled persons either left out of the Will or who want a larger portion of the Estate's assets.  The exact language of the Statute is as follows: 

732.615 Reformation to correct mistakes.—Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

One affect of this Will Reformation Statute has been to cause some to question whether executing a Will is the best way to leave property to their loved ones. 

As a not-so-hypothetical example of the Statute's absurdity, suppose that as a husband and father I want to leave all of my property to my wife and children when I die.  Not so hypothetical to most of my clients.  Under the current Florida Statute, if I die intestate (without a Will) the Florida Probate Code requires distribution of my property to my wife and children in various proportions. 

Now assume that instead of dying intestate, I die leaving a validly executed Will distributing my property to my wife and children in the same proportions as if I had died intestate.  Under the new Will Reformation Statute, "any interested person" can now disrupt the probate process by filing suit for Reformation of my Will seeking a portion of my estate.  That same person can now file the same lawsuit for any estate in Florida as long as the person can show he or she is an "interested person." 

Success on the merits of such a lawsuit could depend on oral testimony of the person drafting the Will (i.e. "I wrote that down wrong, what the Testator really meant to say was..."), a letter written by the Testator in the heat of passion before or after execution of a Will, or he said/she said discussions from any number of interested parties.  I know that each of these three examples are currently being used in Reformation Lawsuits currently pending in Florida courts. 

To make matters worse, suppose a Will was probated thirty years ago with the provision that the corpus of a trust set up by the Will was only to be distributed upon the death of the trust beneficiary.  The trust beneficiary then dies after the Reformation Statute has taken effect.  According to at least one interpretation of the Reformation Statute, the distribution of the Trust corpus gives rise to a Will Reformation lawsuit over a Will probated thirty years ago.

On another note, there is a jaded part of me that wonders whether counseling my clients to execute a Will can open me up to a malpractice suit when the facts are as stated in my not-so-hypothetical hypothetical.  The statute turns Wills and Trusts law upside down.

Florida Probate Law: Execution of Wills

Any person 18 or older who is of sound mind may make a Will.

Every Will must be in writing and executed as follows:

By Testator
(1) The Testator must sign the Will at the end; or
(2) The Testator's name must be subscribed at the end of the Will by some other person in the Testator's presence and by his discretion.

By Witnesses
Witnesses signatures must sign the Will in the presence of the Testator and in the presence of each other.

A Will may be Self-proved to avoid having to bring the attesting witnesses into probate court to prove the Will.

Form
No particular form of words is necessary to the validity of a Will if it is executed with the formalities required by law.

A Codicil must be executed with the same formalities as a Will.

Florida Probate Law: Definitions

The following definitions are included in the Florida Probate Code:

Beneficiary - an heir at law in an intestate estate, and devisee, in a testate estate.  The term "beneficiary" does not apply to an heir at law or a devisee after his interest in the estate has been satisfied.  In the case of a devise to an existing trust or trustee, or to a trust or trustee described by Will, in the absence of a conflict of interest of the trust, the trustee is a beneficiary of the estate.  An owner of a beneficial interest in the trust is a beneficiary of the trust and is, in the absence of a conflict of interest of the trust, not a beneficiary of the estate.

Child - includes a person entitled to take as a child under the Florida Probate Code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendent.

Devise - when used as a noun means a testamentary disposition of real or personal property and, when used as a verb means to dispose of real or personal property by Will.  The term includes "gift," "give," "bequeath," "bequest," and "legacy."  A devise is subject to charges for debts, expenses, and taxes.

Devisee - means a person designated in a Will to receive a devise.  In the case of a devise to an existing trust or trustee, or to a trustee of a trust descibed by Will, the trust or trustee is the devisee.  Beneficiaries of a trust are not devisees.

Distributee - a person who has received estate property from a personal representative other than as a creditor or purchaser.

Domicile - a person's usual place of dwelling and is synonymous with "residence."

Estate - property of a decedent that is subject to administration.

Grantor - one who creates or adds to a trust and includes "settlor" or "trustor" and a testor who creates or adds to a trust.

Heirs - those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

Interested Person - any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.

Florida Probate Law: Revocation of a Will

A Will or Codicil, or any part of either, is revoked:

(1) By a subsequent inconsistent Will or Codicil, even though the subsequent inconsistent Will or Codicil does not expressly revoke all previous Wills or Codicils, but the revocation extends only so far as the inconsistency exists. The law favors two separate Wills to be read together except where the two are inconsistent.

(2) By a subsequent written Will, Codicil, or other writing declaring the revocation, if the same formalities required for the execution of Wills are observed in the execution of the Will, Codicil, or other writing.

(3) By burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.

Effect of Subsequent Marriage, Birth or Divorce
Neither subsequent marriage nor birth or adoption of lineal descendants revoke the prior Will of any person, but the pretermitted spouse or child shall inherit regardless of the prior will.

All Wills made by husband and wife whose marriage has been subsequently dissolve or who become divorced shall become void by means of the dissolution of marriage or divorce as the Will affects the surviving divorced spouse.

Florida Probate Law: Pretermitted Spouse

A Pretermitted Spouse is when a person marries after making a Will and the spouse survives the Testator. The surviving spouse receives a share in the estate of the Testator equal in value to that which the surviving spouse would have received if the Testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the Will;

(3) The Will discloses an intention not to make provision for the spouse.

Florida Probate Law: Self Proving Will

A Self-proved Will executed in accordance with the Florida Probate Code may be admitted to probate without further proof.

A Will or Codicil executed in conformity with the Florida Probate Code may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the Testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths and evidenced by the officer's certificate attached to or following the Will.

Wills: Another Ethical Dilemma

Several weeks ago I was approached (informally) by a woman in her mid-70's with a question regarding her will. It seems the attorney who drafted the will had contacted her about updating the will to address recent legislative changes made in the law. It had been twenty years since the will was drafted. She also said the attorney wanted to schedule an appointment for her to come in and go over her estate plan.

To the lay person this may seem like an attorney who is looking out for the interest of his client. And this is most likely the case. But many in the legal profession take a more jaded view of the attorney's actions. They would characterize the attorney’s actions as a desperate attempt to make money by soliciting former clients for business. If the latter is the case, his actions are prohibited under ethical restrictions imposed under most state bars. This article deals with the Florida Rules Regulating Professional Conduct.

Florida Ethical Requirements
In Florida, the Rules Regulating Professional Conduct place a number of restrictions on soliciting clients for business. Specifically, Section 4-7.4 states that unless certain restrictive conditions are complied with “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

The question then becomes “what about soliciting former clients to update their wills?” For the answer to this question Florida Bar Ethics Opinion 64-61 sheds some light. To my knowledge the opinion is still valid despite being several decades old. It is cited in a number of recent opinions.

Ethics Opinion 64-61
Florida Bar Ethics Opinion 64-61 states that “a lawyer may notify his clients, whose wills are prepared by the lawyer, of changes in federal tax law or regulations which may affect their wills.” But this is not a rubber stamp for all attorneys to begin soliciting former clients. The Opinion placed several conditions that must exist for the attorney to contact the client. These restrictions include: (1) the lawyer (or his firm) must have prepared the will; (2) the lawyer must not have a reason to believe that the will has been revoked or superseded; (3) the lawyer must have reason to believe that, because of the new developments in the law, the existing will may no longer achieve the testator's desires; and (4) the lawyer may not solicit or suggest his or his firm's professional employment.

Living Will and the Durable Power of Attorney

After the Terry Schiavo saga concluded last year in south Florida our firm saw a huge increase in clients seeking living wills. Many of you may not recall the case. Terry Schiavo is the woman from St. Petersburg, Florida who at the age of 26 had a heart attack and was in a coma for ten weeks. About three years later she was diagnosed as being in a persistent vegetative state.

In 1998 Terri's husband and guardian, Michael Schiavo, petitioned the courts to remove her gastric feeding tube. This meant Terri would be deprived of the sustenance she needed to stay alive. Terri's parents opposed the removal of the feeding tube saying Terri would not have wanted the tube removed. A lengthy court fight ensued (including fourteen appeals). The courts eventually determined that Michael Schiavo had the right to have the feeding tube removed.

After seven years of court battles, Terri's feeding tube was removed for a third and final time on March 18, 2005. She died thirteen days later at a Pinellas Park hospice on March 31, 2005. She was 41. Had Terri only had a Living Will there would not have been a dispute over whether she wanted the feeding tube removed.

What Is A Living Will?
A Living Will is a document that expresses a person's wishes about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Health care providers are bound by the instructions contained in the Living Will. In addition to directing nurses and other health care providers to withhold treatment, Living Wills may also direct that all available treatment options and medical techniques be used, or choose some medical options and reject others.

Living Wills do not take effect until the person is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

Durable Power of Attorney
A durable power of attorney can perform some of the functions of a living will. This document gives another person legal power to make health care decisions for you if you become unable to make those decisions yourself. A durable power of attorney is different from a Living Will in that it may direct the attorney-in-fact to carry out the Living Will's instructions or allow the attorney-in-fact to use his or her own judgment. A durable power of attorney is not dependent on terminal illness or permanent unconsciousness to become effective. I recommend both documents be executed to cover every situation.

Estate Planning; You Decide Who Gets What

Most of us have heard the saying "nothing is certain but death and taxes." When it comes to estate planning these two things, death and taxes, should be at the forefront of everyone's mind. That being said, there are numerous ways to plan for the inevitablity of death. Most estate plans include creating a Will, setting up Trusts and obtaining life insurance policies.

If you do not plan your estate now a state legislature will divide it up when you die. The one size fits all approach taken by your state legislature will most likely not divide your property the way you would divide it. The legislature is not going to know that you want your musical genius nephew Jimmy to have your complete Elvis collection and not your tone deaf son Roy. More importantly, the legislature is not going to know who you want to have custody of your children or who you want to administer your estate.

Create A Will
EVERYONE SHOULD HAVE A WILL! A will is a legal document that specifies who will manage your estate and who is to receive what at your death. A will must be in writing and must meet certain specific requirements to be valid. In most states, the person making the will must sign the will at the end and the signature must be witnessed by at least two other individuals. Most states prefer that the witnessess be uninterested parties to the will. The witnessess must also sign the will in the presence of each other and the person making the will. The will must also clearly identify the property to be bequeathed, the individuals to whom the property is bequeathed (the "beneficiaries") and that the person making the will intended to leave the property to the beneficiaries at his or her death.

To obtain the specific requirements for a valid will in your state contact an estate planning attorney in your state. There are also computer programs that allow you to create your own will. The problem with these programs is they may not meet the requirements of your state.

Consider Setting Up A Trust
If your estate is large enough you may consider setting up a trust to avoid estate taxes upon your death. A trust is a property interest (money, home, car, etc.) held by one person (the trustee) at the request of another (you, the person setting up the trust) for the benefit of a third-party (the beneficiary). Most trusts allow you to name yourself as the trustee if you wish. There are several different types of trusts that can be set up including active trusts, blended trusts, blind trusts, revocable trusts, irrevocable trusts, etc. To set up a trust contact an attorney in your state who specializes in estate planning. Do not set up the trust yourself. You will most likely not meet all of the legal requisites and the trust will be declared invalid.

You may also set up a trust funded with the proceeds of a life insurance policy. Although there may not be any actual funds in the trust at the time it is set up the life insurance proceeds will activate the trust upon your death.

Other Estate Planning Articles
Estate Planning and the Enhanced Life Estate Deed, The Difference Between the Enhanced Life Estate Deed, Warranty Deed and Quit claim Deed, The Traditional Life Estate Deed, The Revocable Transfer on Death Deed and California's Revocable Deed .