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Florida case highlights need for precision in estate plan

Many Floridians are likely aware of the need for an estate plan. The use of various documents to dispose of property and protect both assets and oneself in the case of incapacity has been written about voluminously. Further, many resources have cropped up, especially on the internet, ostensibly allowing people to create their own legally valid estate plan documents.

While it may seem like a good idea to save some money by using a "do it yourself" form to prepare a will and other estate planning documents, it should be kept in mind that careful, precise language, and some knowledge of the requirements of law are needed to ensure that there are no unintended consequences.

An example of this need is a Florida probate case involving four older siblings and two nieces. Sister 1 wrote a will in 2004 that left specific bequests of property to sister 2, with a provision that if sister 2 were to die first, that property would go to brother 1. In 2007, sister 2 did die, leaving a portion of her estate to sister 1. Then in 2009, sister 1 died. Brother 1 expected to receive the property sister 2 had left to sister 1. Unfortunately for him, sister 1's will failed to contain a "residuary clause," which specifies where any property not specifically devised will go. Further, although sister 1 had left a note indicating that her intent was that the 2004 will be amended so that the property inherited from sister 2 should go to brother 1, the note did not meet the legal requirements for a testamentary document under Florida law. Thus, the note was ineffective in transferring the property to brother 1.

The result was an appellate court decision ruling that the property not specifically mentioned in the will pass under the state intestacy statute. This resulted in giving one-half the property to brother 1, and one-quarter each to two nieces, the children of an already deceased brother 2.

As the above case illustrates, one's testamentary intent can be thwarted by not paying close attention to the way a will is written, and the legal requirements for amending the document. Careful drafting and taking into account all possibilities is essential to ensuring one's wishes are carried out. Periodic review of older documents to make certain any new property is taken care of is also important. While there is nothing wrong with doing things oneself, it is sometimes cheaper in the long run to seek professional help.

Source: Forbes, "Careful, Thoughtful Drafting Essential In Estate Planning," Stephen J. Dunn, April 7, 2014

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