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Mistakes that lead to probate litigation

On Behalf of | Oct 26, 2023 | Estate Planning |

Making the choice to set up an estate plan is a wise and responsible decision. Wills, trusts or powers of attorney are all important estate planning documents that can help you ensure your assets will be appropriately distributed to loved ones after you pass away.

However, estate planning involves many rules and requirements. Missing one of these or making a wrong choice could lead to your estate plan being challenged. This means your family could end up in probate litigation, which costs time and money and often results in conflict.

There are some common mistakes people make when setting up their estate plan. By avoiding these you increase the chance of a smooth estate administration process.

Not protecting your original will

Give your original will to someone you trust to protect it and not lose or destroy it. Florida law presumes that a will was revoked if the original will is not available. Leaving your original will in your home or possession is a typical mistake people make, believing that if it is with them, it is safe.

However, once you pass away, your original will could be taken by anyone who is unhappy with its terms.

Not selecting the right executor

Choosing an unqualified executor is another common mistake. An executor, also called a personal representative in Florida, is the person you choose to administer your estate after you pass away.

Your personal representative must be either a Florida resident or related to you by blood or marriage. A personal representative has several duties and a lot of responsibility. They should be someone you trust to handle the responsibility.

Giving unconditional cash gifts

Be careful about giving cash to your beneficiaries. You have no way of knowing how much your estate will be worth when you pass away, and chances are it will not be worth the exact same amount as it is when you are creating your estate plan.

If you want to give cash, consider putting conditions on it, such as if the cash is available or if there is still a certain amount left in the state.

Not knowing the homestead laws

Real estate is usually one of the largest assets in an estate plan and “who gets the house” is something many families fight over. Florida probate law states that you cannot leave your home to anyone if you have a spouse or minor child.

Therefore, if you leave your home to someone else besides your spouse or minor child in your will, that term will be invalid. Your home will not be considered part of your will and will pass according to probate law.

Not thoroughly reviewing your will

Finally, pay attention to details. A misplaced comma in a will could change a gift of $1,000 to $10,000. Asset values and descriptions of assets should also be as accurately reflected as possible.

For example, if a will leaves a certain number of acres of land to someone, but there are additional acres not reflected in the will, who gets the additional acres? Mistakes like these can lead to confusion and ultimately litigation.

The goal of a probate court is to distribute assets according to the wishes of the person who made the will. The court will examine the entire document, not just the portion that contains the error. However, avoiding these mistakes can keep your estate out of probate litigation.