What You Need to Know About Leaving Someone Out of Your Will

What You Need to Know About Leaving Someone Out of Your Will

August 2, 2017 • Uncategorized

Florida has very few requirements in drafting a will. The testator (drafter of the will) needs to:

1. Be over the age of 18 (or an emancipated minor); and
2. Be of sound mind at the time of the will.

The will must be written, signed by the testator (or acknowledged), and witnessed by two individuals. Aside from that, there are no requirements concerning the length or disposition in the substance of the individual will.

The Florida Probate Code is not unique in the lack of stringent requirements – most states do not have set requirements for a will length or depth. Many individuals pass away without providing for the disposition of their property, and they therefore fall into “intestate” succession.

However, the lack of stringent requirements in Florida can leave wills open to frequent attack by relatives who were not included in the disposition of the estate. Family dynamics are a difficult thing to grasp from the content of a will, and unfortunately more disputes than necessary end up in court. Family members are eager to claim that a testator was not of sound mind when drafting their will – in their mind this is the only logical explanation for being written out of the will.

As such, this brings along the trying process of having to prove that the testator was of sound mind at the time of the will draft. If the family member is successful in throwing the will out of court, this may impact the appropriate will beneficiaries, since a court will divide your estate according to your immediate heirs.

This is likely not the interest which you wished to leave your beneficiaries; however, you will be unable to make any changes once it has come to this point.

It should give you peace of mind to know that there are very limited grounds to contest a will. There must be a clear procedural error during the drafting of a will, evidence of a fraudulent will, or evidence of duress.  Often the biggest hurdle to clear in a contest of a will is that of duress. A person who was written out of your will may argue that the heirs as listed in the will coerced you to sign a will. This is often an argument in a situation where a testator’s children are written out of a will in lieu of a non-relative. It is therefore important to either leave a detailed record of your relationship with the heirs you appoint, or make your wishes well known to people outside your heirs who could serve as witnesses in the event of a trial.

Many probate lawyers will urge testators against excluding a family member from their will, and often encourage the testator to leave a small portion of their estate to every child to avoid legal issues after death. However, in the event that a child was written out of your will, or another close family member, it is a good idea to cover all your bases with other avenues.

Many testators are also opting to contain all assets in financial accounts which have a cosigner listed on the account. This skips the hurdle of drafting a will and dealing with the probate process, meaning that their beneficiaries will often be able to keep more of the estate, excluding any probate fees.

Wills are still the standard option for many upon the disposition of their estate, however, it is important to keep in mind the other avenues to divide your estate which will avoid a legal dispute in the future.