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Will My Will Be Willfully Honored?

Some Reasons Your Will May Not Be Honored:

If you put forth the time, effort, and expense to have your will prepared by a Miami probate lawyer, you want it to be followed. A common reason that a will is not followed is that the heirs do not locate the will after your death.

In Florida, wills are not filed with the court before the maker's demise except when a guardianship is established for the maker of the will. It is important for you to keep the beneficiaries of your will informed as to where it is located. The safest place is a safe deposit box at your bank.

1. The Will Cannot Be Found

When the original will is not produced in court, there is a presumption that the maker destroyed the original to revoke it. If you can prove that it was not destroyed by the maker with intent to revoke it, it is possible for a copy of the will to be admitted to probate. If the will was kept at home and the house burned down, the copy could be admitted. If the maker was legally incapacitated at the time the maker destroyed the will, a copy could be admitted. There are many circumstances in which a will can be misplaced or destroyed which would overcome the presumption of revocation. Yet if the will is discovered after the probate administration is closed, it is too late to get a "re-do".

2. Marriage or Birth After Will is Made

If the maker of a will marries or has a child after signing a will, the law presumes there was no intent to disinherit the new spouse or child and allows them to claim the share provided had the maker died without a will.

3. Divorce After Will is Made

When the maker of a will obtains a final decree of divorce or annulment after signing a will, and before the maker dies, the bequest to the former spouse is void unless it is required to be preserved by the terms of the court order. But if the final decree of divorce or annulment is not signed before the maker dies, the surviving spouse inherits. If you are involved in a divorce action, it is beneficial to see an attorney regarding your estate plan while the divorce is pending.

4. Proof of Undue Influence or Lack of Testamentary Capacity

If a party who would inherit if no will had been made, can prove in court that the will was signed due to undue influence of another person or lack of testamentary capacity by the maker, the last testament may be denied approval in whole or part. A will contest of this nature can be both difficult and expensive.

5. Your Will Leaves Your Surviving Spouse Less Than Required by Law

A surviving spouse may choose to claim an elective share of thirty percent of assets, instead of the devise provided in the will. In addition, the spouse may claim a family allowance, exempt property, and a homestead interest. If the surviving spouse waived any of these rights in a nuptial agreement, the rights waived could not be claimed.

6. The Beneficiary of the Will was Responsible for Causing the Maker's Death

Florida law provides that a person who unlawfully and intentionally kills or procures the death of another shall not receive any benefit from the estate. A conviction of murder is conclusive. Even if a murder conviction is not obtained in criminal court, the court may determine by the greater weight of the evidence that the killing was unlawful and intentional for estate purposes.

The examples discussed are not all situations where a will is not followed in whole or in part. They illustrate why you should consult a Miami probate attorney to prepare your estate plan and to advise you after the demise of a loved one.

Categories: Wills and Trusts

Frequently Asked Questions

Why should I create a trust? You should create a trust for multiple reasons. Trusts can help you avoid certain types of taxes. If you create an irrevocable life insurance trust, for example, protects your death benefit proceeds from estate taxes. You may also be able to avoid the probate process by keeping certain property out of your estate. You can create certain conditions and terms for trusts, in order to protect your estate, as well. You can also leave money for charities and institutions in a trust, along with fund your child or grandchildren's education.
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Susan E. Durre - Miami Probate Lawyer
Located at 6601 SW 80th Street, Suite 121
South Miami, FL 33143.
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