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Florida heirs should not become too involved in will creation

Many people have older parents who have moved to Florida. Because it is a destination for so many retirees, the state is often the venue for people who need to create, change or update their wills. As people get older, they often have less confidence in their ability to do complex tasks, and less patience for dealing with them. As a result, it is often the case that elderly people ask their adult children or grandchildren to aid them in such situations. The updating of a will as part of an estate plan is one such task, but there are pitfalls for potential heirs who become involved in the actual estate planning process.

Children are very often the heirs of their parents' estates, and thus have a fiduciary interest in how a will is written, and whether it is valid. Because of this, any involvement of an heir in the process of will writing or updating can cause problems if the will is later challenged. This is because of the idea of "undue influence" in probate law.

A will can be challenged if it can be shown that the decedent had been under the influence of another person at the time the will was written or changes made. In fact, according to one estate planning attorney, in Florida, a presumption of undue influence may arise if an heir was the one who brought a lawyer into the will writing or changing. This is important, because it shifts the burden of proof from the challenger of the will to the heir who got involved in the process. Thus, the heir would have to produce evidence that there was no undue influence, which is a difficult thing to do.

This doesn't mean that a person can do nothing to help parents when dealing with estate planning issues. It is good, in fact, for all potential heirs to discuss and be clear about what the elderly relative wishes to do, so as to avoid misunderstandings later.

Source: bellinghamherald.com, "Ask Nancy: Updating a will of an older person can be tricky," Nancy Stein, March 18, 2015

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