Common Errors Attorneys Make in Drafting Wills and Estate Planning Documents in Florida
Attorneys have an ethical duty to be competent in whatever area of the practice of law we undertake. A lot of time, when we are venture out of our "comfort zone" of our area of practice, we are unaware of the additional obstacles and situations that we need to concern ourselves with. When preparing any type of estate plan for any client, it is important to be observant and aware of any family member or close "friend" that seems overly anxious to assist someone in the preparation of their Will or Trust. It is our duty, as the attorney, to ensure that there is no "undue influence" or even the slightest hint of it by any party which may later cause our work to come under suspicion or even litigation. Ensuing litigation, after the fact, is both time consuming and costly for all involved. For a laundry list of things the attorney should avoid in this area, see In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). Some of the most common mistakes or errors which I have observed over the past 29 years in estate plans which have been prepared by attorneys who do not primarily focus in this type of law are as follows: 1. No residuary clauses. The initial beneficiaries are identified, but no provisions exist for the distribution of the estate if one or more of the named beneficiaries predecease the writer of the Will. This oversight causes great expense to the estate. A determination of beneficiaries must be made by the Court to discover who is entitled to the assets. This process is lengthy, costly, and often results in a distribution the testator did not intend. 2. Use of Document Assemblers. Just like I would not even know what might be missing if I attempted to draft something out of my field, such as if I attempted to prepare a "Marital Settlement Agreement" in a divorce proceeding, if you don't regularly prepare Wills and/or Trusts, how would you know how to review one as prepared by a "document assembler" such as Pro Docs? You "don't know what you don't know" and often do not catch that an essential provision is missing. 3. Special Needs Trust for disabled spouses and/or children. If you don't plan properly for relatives who are on Medicaid or SSI, you can disqualify them for the benefits they are already receiving by leaving them an inheritance that is not protected from their creditors and medical needs. 4. Children who the client wants to disinherit. Failure to identify them and properly disinherit them, if that is the situation, can cause a contest and the assets to be distributed in a manner unintended by the client. Once someone has passed, it is too late to fix the problem. 5. The proper use of a "Separate Writing." Many time I have seen decedent's attempt to devise bank accounts or automobiles on separate writing instruments. Only untitled items of tangible personal property can be devised via a separate writing. 6. Bond and Personal Representative efficiency. When nominating a personal representative in a Will, make sure bond is waived, if that is what the testator would prefer. Most testators do prefer to avoid the expense of a bond. Also, the Will itself should outline the duties that the personal representative will be allowed to perform without court approval, such as sell assets, including real property. 7. Minor children. If our client has minor children, we must make sure that the client nominates someone to be guardian of their minor children in the event no parent is alive. This can prevent relatives fighting over "who gets the kids!" 8. Avoiding guardianship of minors. If the client's children are minors, a "simple trust" within the Will can insure that their assets are held until an age of majority, or even beyond, is reached. This simple device can avoid the expense of a guardianship of the minor's inheritance. 9. Who is qualified to serve as a Personal Representative? Florida Statute is very clear on this point and prior to any preparation of a Will by an attorney who does not regularly prepare estate documents, Florida Statutes 733.302, 733.303, and 733.304 should be reviewed. Do not name the best friend or professional advisor of the testator if they are not a Florida resident. 10. Disposal of your client's body. This information can be specifically stated in their will, as well as the directive that they have made pre-planned burial arrangements. Don't just state "it is up to the personal representative to decide." The attorney should specifically state if they desire cremation or traditional burial. This can help to take the pressure off the family in an already trying time. 11. Full legal names. The attorney should urge his clients to inform of "proper names" of beneficiaries and in some cases the beneficiary's relationship to the client. This can help avoid confusion if members of the client's family have "family names" that continue through the generations, i.e. Jr.'s and Sr.'s, as well as family members who are usually addressed by their middle names, as apposed to their given names. Avoid nicknames. 12. Beneficiary designations. Since beneficiary designations of life insurance, annuities, IRA's, and other retirement plans are not controlled by the will, the attorney should be sure to go over these specifically with the client to make sure the assets arrive where the client wants them to go. When clients go through births, deaths, and divorces, those are frequently not current. 13. Wills do not avoid probate. Many clients think that by having a will they avoid probate. While most attorneys know that is not true, they sometimes forget to point that out to a client. They should take the time to go over with the client different options such as joint ownership, pay on death accounts, and life estates. What about Powers of Attorneys? When preparing a Power of Attorney for a client, the most useful Power of Attorney is Durable. The attorney must use language similar to "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes." Otherwise, the client's attorney in fact may not be able to use the power of attorney when he most needs to. Additionally, a good Durable Power of Attorney should also give the authority to the nominated "attorney-in-fact" the ability to do Medicaid Planning, prepare and sign tax returns, sell or mortgage real property, including homestead real property, as well as delegate to the attorney in fact any HIPAA powers, to name a few. Such authority should be specific, rather than broad and sweeping. A Durable Power of Attorney should also be executed with the formalities of the conveyance of real property and, to be enforceable by law, must be executed after October 1, 1995. If the attorney does his job thoroughly, the client should feel an immense amount of relief when they complete their estate planning. When I see that, it really makes my day.