Estate planning should bring peace of mind—not disputes. If you suspect issues in your will or trust, contact Hogan & Hogan for guidance.
1. Improper Execution of a Will
Florida law requires strict compliance with execution formalities. A will must be in writing, signed at the end by the testator, and signed by two witnesses in each other’s presence (Fla. Stat. § 732.502).
Courts have held that “substantial compliance” is not enough. For example, in Allen v. Dalk, 826 So. 2d 245 (Fla. 2002), the Florida Supreme Court invalidated a will that lacked the testator’s signature.
Fix? Defective execution usually cannot be cured after death. The best solution is prevention—review your will for compliance now.
2. Failing to Update Beneficiary Designations
Many assets—like life insurance and retirement accounts—transfer by beneficiary designation, not by will. If outdated (e.g., an ex-spouse is still listed), the designation controls. In Smith v. Smith, 919 So. 2d 525 (Fla. 5th DCA 2005), the court enforced a designation despite conflicting estate documents.
Fix? Regularly review and update your forms. If discovered after death, litigation may be required—a costly and uncertain process.
3. Ambiguous or Contradictory Provisions
Vague or conflicting instructions in wills or trusts can cause disputes. Florida law allows courts to construe ambiguous provisions to honor intent (Fla. Stat. § 732.6005).
In Roberts v. Sarros, 920 So. 2d 193 (Fla. 2d DCA 2006), the court resolved conflicts by considering the testator’s overall plan.
Fix? Courts may reform wills under Fla. Stat. § 732.615 or trusts under Fla. Stat. § 736.0415.
4. Forgetting About Homestead Restrictions
Florida’s constitutional homestead protections can invalidate attempted devises. A testator generally cannot leave homestead property to anyone other than a spouse or minor children (Fla. Const. art. X, § 4(c)).
Fix? The property will pass by law. A surviving spouse may elect a one-half interest instead of a life estate (Fla. Stat. § 732.401).
5. Outdated or Unfunded Trusts
A revocable trust that is never funded cannot avoid probate. Old trusts may reference repealed tax laws or outdated provisions.
Fix? Revocable trusts can be amended, and others may be judicially modified under Fla. Stat. § 736.04113 or § 736.04115.
Takeaway
Florida law is unforgiving when it comes to estate planning errors. While some can be corrected through court action, others are fatal. The best approach is proactive: review your documents regularly with an attorney experienced in Florida estate planning.
