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Common Mistakes with DIY Wills

November 19

The Pitfalls of Do-It-Yourself Wills

Written by Thomas Upchurch

There’s no shortage of forms and do-it-yourself (DIY) websites for estate planning documents, but making a will is rarely as simple as filling in blanks on a form. Many people are drawn to this approach because it seems quick and easy, and it’s less expensive than hiring an attorney to draft a will. However, even small mistakes can derail the testator’s plans and create serious problems for intended beneficiaries.

Perhaps the most significant risk for a Florida resident using a DIY will is the possibility that some technical error will render the will invalid. If a Florida will is deemed invalid, the legal effect is the same as the deceased not having had a will at all. That means property will be distributed according to the law of intestate succession, which may not match up with your intentions.

Even a valid will can have serious unintended consequences if you’re not well-versed in Florida law. A skipped blank, unclear phrasing, or even typographical error can derail your plans. If you’re considering drafting your own will or using a will kit or online form to make your will, be sure to thoroughly educate yourself about the legal and procedural requirements and the potential consequences of errors and omissions.

Common Do-It-Yourself Will Errors

1. Appointment of a Personal Representative

You want to appoint a trusted, competent person to manage your estate and protect the interests of your beneficiaries, but it’s important to know the rules. For example, Florida law requires the personal representative to be a Florida resident unless he or she is related to you by blood, marriage, or adoption. The personal representative must also be at least 18 years of age, be physically and mentally able to perform the duties of the personal representative, and not have been convicted of a felony.

If the appointment of a personal representative is ineffective because the chosen person is ineligible, the court will appoint a personal representative—one you may not have chosen to entrust with the role. In addition, a vacancy in this role can cause stress and conflict among family members.

2. Failure to Consider Taxes and Other Legal Issues

Passing assets after death isn’t always as simple as naming the person you want to receive those assets. The way assets pass may have a significant impact on taxation, and even on whether or not those assets reach your beneficiaries. For example, a family home passing to a surviving spouse or descendant is generally protected from creditors. However, if the same home is sold so the proceeds can be distributed to beneficiaries, that protection may be lost, and creditors may intercept those proceeds.

An experienced estate attorney will be able to explain the legal and tax consequences of different methods of passing along property after death and help you choose the one that best suits your situation and protects your beneficiaries.

3. Using Terminology Loosely

Creating a will that achieves your goals has become more complex in the age of blended families, and the way you define family relationships may be different from the way a probate court will apply that same language. One of the most common examples involves stepchildren.

Imagine, for example, that you have a stepchild you raised from infancy and two natural children. You may have raised the three children together and think of them equally as your children. But, if you bequeath your estate “equally to my children,” your two natural children will reach receive half and your stepchild will receive nothing.

4. Stopping with a Will

Though a will is an important element in estate planning, it may leave important questions unanswered. Some critical estate planning issues that can’t be addressed with a will include appointment of someone to make medical decisions for you if you become incapacitated, authorization for someone to pay your bills and otherwise manage your finances if you become incapacitated, and nomination of a guardian for your children in the event that you pass away or become incapacitated before they reach adulthood.

While forms are available for some of these documents, using the fill-in-the-blanks approach is risky in many of the same ways a do-it-yourself will can be. And, you may not even be aware of the various issues you need to address and the options for accomplishing those goals.

Talk to an Experienced Estate Planning Lawyer

When you meet with an experienced estate planning attorney, your lawyer can help to assess your family situation, explain your options for passing assets along in the manner most beneficial to your loved ones, and advise you as to the additional provisions that may be required. Give yourself and your family the benefit of a knowledgeable guide in the estate planning process. Get in touch with us to schedule an appointment to review your estate planning needs.