Last Update: 02/10/16
It is true that Florida probate lawyers compete with online will services and companies that publish generic forms for Last Wills and Testaments. Some of those who will be reading this article will respond with a knee-jerk reaction that any warnings from a Florida probate attorney are biased and self-serving. However, that’s not true.
The truth is that Florida probate attorneys try and warn Floridians against using the online will services or pre-packaged will forms to finalize their last wishes in a Last Will and Testament because it’s the right thing to do. Florida probate attorneys make more money fixing problems created from generic wills than it would have cost the Floridian who just took the time to see a Florida legal professional about his will in the first place.
Here are 5 things to consider before using online will services or prepackaged will forms in Florida:
1. Florida law is constantly changing. There are laws, for example, that impact Florida wills, as well as powers of attorney, health care surrogates and other documents which should be created alongside the will, that went into effect last month. National companies may be slow to update their documents to comply with current law or they may even be unaware of the latest changes in state law which could effect an individual’s situation. Further, will they ask all of the right questions? Do you have a safety deposit box? If so, where is it located? Will you want them to know?
2. Not all your property may be covered by a Florida Last Will and Testament, and a Florida probate lawyer can explain how your property will be treated under Florida law. For example:
- an investment account with a joint owner or designated beneficiary will not be covered in a Florida Will;
- a bank account (checking or savings) with a joint owner or designated beneficiary will not be covered by a Florida Will; and
- real estate owned jointly or with a designated will not be covered by a Florida Will.
3. Other commonly held assets in Florida that may not be covered by a will include:
- life insurance polices
4. Your Florida Will must be determined to be legally valid, including being properly executed, in order to be admitted to probate allowing for the ownership of your probate assets to pass to your intended beneficiaries. The online wills or prepackaged form wills must be properly executed in order to be “admitted to probate.” Do they provide a self-proving affidavit, thereby avoiding the necessity of having to locate witnesses when you die? In the long run, you’re not saving any money on legal fees by opting for the prepackaged will or online will preparation service if the will is not properly executed.
5. If the will you signed is not found to be valid under Florida law, then one of two things will happen: (a) an older will that is valid may be used to transfer your assets or (b) if there is no other will, then your assets will be distributed under Florida law’s “intestacy statutes.”
And There, There Are Taxes To Consider….
Part of planning your estate, and how to pass your property to your loved ones after you’ve passed on, includes factoring in the tax implications of what you are planning to do. This is complex, and it involves state and federal taxes. From our website:
For those Probate estates not required to file a federal estate tax return, the final documents to close a probate are due within 12 months of the opening of the estate by the Court. An estate is opened upon the issuance of letters of administration by the Court.
For those estate required to file a federal estate tax return, Form 706, which is due nine months after death, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the court because often the IRS’ review and acceptance of the estate tax return are not completed within that period.
Probates that do not file a federal estate tax return and that do not involve any lawsuits, often close within five or six months.
Bottom line, it may be tempting to use these online will preparation services, like Legal Zoom or Rocket Lawyer, or to fill out forms you buy at the local office supply store, but here in Florida, the law may not respect what you’ve done — and any flaw, including the improper execution of the document, may not be discovered until some grieving loved one tries to probate the document. You will need a lawyer then …. and it will more expensive than it otherwise needed to be in probating your estate
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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