Top Five Mistakes in Florida Wills
#5 Unqualified Executor
This is a common mistake because most states have no residency requirement for executors. A Personal Representative (“PR”) in Florida must be either a Florida resident or related to the decedent, within the prescribed range, by blood or marriage. Many retirees and snowbirds get caught on this problem when they name their attorney, accountant or best friend from up North to be their PR. Naming an unqualified PR can result in the attorney for the estate acting as both PR and attorney for the PR and charging a double fee. The statute has been challenged on constitutionality and narrowly upheld, In re Greenberg’s Estate, 390 So.2d 40 (Fla. 1980), appeal dismissed 101 S. Ct. 1475.
#4 Improper homestead devise
Most Florida lawyers are, or should be, aware of the fact that you cannot leave your homestead to anyone if you have a spouse or minor child. The limited exception is that you can leave your homestead to your spouse, but only if you have no minor child. Sadly, many will “kits” or “forms” that Floridians use to draft their own wills often fail to recognize this Sunshine State peculiarity. Even lawyers sometimes overlook the fact that Florida law requires nothing less than a fee simple devise to a spouse. Anything less is invalid and means that the homestead passes “intestate” (outside of the Will and according to Florida Statute). In re Finch’s Estate, 401 So. 2d 1308 (Fla. 1981); In re Estate of Ritz, 385 So. 2d 1102 (Fla. 1980).
#3 Wills – Leaving unconditional specific cash bequests
Can you promise your beneficiaries how much your estate will be worth when you die? No one can, but drafting your will to give significant cash gifts in a certain amount is not a good idea unless you can give that promise. Your estate may be $500,000 when you draft your will, so $100,000 in gifts to secondary beneficiaries still leaves a good amount to the residuary beneficiaries. However, add in some large medical or nursing home bills before you die, and suddenly your residuary beneficiaries (the persons to whom you intended to leave the most) will receive little or nothing.
#2 Directing the Executor to sell the homestead
There is a critical difference between devising a homestead and directing a personal representative to sell the homestead and distribute the proceeds. The latter will destroy the homestead exemption from creditors, Knadle v. Estate of Knadle, 686 So.2d 631 (Fla. 1st DCA 1996) and Estate of Price v. West Florida Hospital, Inc., 513 So.2d 767 ( Fla. 1st DCA 1987). Who among us can guarantee that at our deaths there will be no creditors? While there may, on occasion, be a good reason to not vest title directly in the heirs, any drafting which deliberately loses the homestead exemption should be made after full disclosure of the risk and a strong CYA letter.
#1 Leaving the original Last Will exposed to disfavored heirs
Many wills have the same disposition of assets as intestacy laws (as if there was no will), and it is no great loss if those wills disappear. However, wills which favor some children over others, or leave assets to a “significant other” are temptations to the intestate “next of kin” if left in the home at the time of death. Florida law holds that the absence of the original will creates a presumption of revocation. In re Parker’s Estate, 382 So. 2d 652 (Fla. 1980). Even a beneficiary with a copy of the lost will may have real difficulty establishing a lost will. Better to leave the original will with the person who is being favored and who is motivated to protect, not shred, the will.