There are a lot of options when creating a Florida estate plan or taking care of a loved one’s estate other than hiring a lawyer. There are forms at office supply stores, online forms, document preparation companies. I didn’t mention trying to create your own drafts. I had a family member that jotted who was to get what under the heading “Will” on a legal pad. My family honored that list, but no one was under any obligation to follow that list. Occasionally you get lucky.
One of the common issues with trying to create a Florida estate plan or administer a Florida probate estate without a lawyer is that something is missing. The commercially available forms are made in an attempt to comply with the law in as many states as possible. That means that they include provisions that may be unnecessary in Florida. On the other hand they may omit provisions that can make the probate process go much more smoothly in Florida, but not in any other state.
Some of the most common forms people like to get done as cheaply as possible are the Last Will and Testament, Durable Power of Attorney (DPOA), and Advanced directives. When you downloaded those forms, did you know to check for these issues:
- Did the Durable Power of attorney include the powers that Florida law requires to be specifically enumerated and initialed? Does it specifically mention transfers of the homestead? Does it state that all previous Powers have been revoked? Does it mention that the agent may have the ability to make gifts to themselves or others, and does it place limitations on those gifts?
- Does the Will include a self proving affidavit? Does it include class gifts or does it name specific people? Does the will devise the homestead? If so, does it do so in a valid way under Florida law?
- Does the Advance Directive have the language required by Florida law? Do you need an advanced directive or a Do Not Resuscitate Order (These are VERY different).
I’ve run into DPOA forms from these companies as well. Any time you hire these companies you’re really rolling the dice. I’ve seen DPOAs that were wholly insufficient to do anything but hire me to fix it.
Recently I encountered a trust drafted by a company that claims to be a “document preparation” company. The trust wasn’t a terrible trust, but it left out one asset that still has to go through probate, partially defeating the purpose of using a trust. The document company couldn’t ask what else they wanted to put in the trust, then explain how to accomplish that- that’s the practice of law.
Aside from being the practice of law, not all situations can be addressed with a fill-in-the-blank form. If you own a company, either Corporate Stock or LLC membership interest, it may not be a great idea to title that in a revocable trust for many reasons. The document preparation company may not know that under Florida law you can title a stock or LLC interest so that it will simply fall into the trust upon your death.
Our Florida estate planning attorneys ask the questions that will help avoid these unfortunate situations. We can make sure all of the assets you want to avoid probate do exactly that.
Sometimes something is missing in probate too. The forms sold by online companies don’t provide any guidance on what to do when the court needs additional information or documents. We follow the statutory guidelines on probate fees. So if we start the work and the court needs something more, we verify what’s missing and provide them what they need.
Once we appear in a probate case, like a lot of litigation, we’re in it. We can’t simply withdraw and leave you high and dry. So if we have to come in after you’ve started, we can’t usually offer much of a discount. So there’s not much value in buying forms, finding out it didn’t have what you need and then having to hire us anyway.
Did the forms you bought include the notices you need to put creditors on the clock so they won’t have the next two years to decide whether or not they want to make a claim? A Florida Probate Attorney will make sure your case is closed as soon as possible.
Trying to use forms, then finding out you need an attorney anyway will just cause additional expense and time waste. Once in a blue moon, I run into a client who’s made an impressive amount of progress on their case by doing it themselves. But when I encounter these people it’s because they aren’t sure how to get it finished. In probate, the court will ask you for what they need before issuing the orders; with estate planning, you won’t know you’re standing on a time bomb until it’s too late.
Our Florida probate attorneys know what happens in estate administration, so we put that to work for us in Florida Estate Planning and Probate. Attorneys are always saying “you should hire an attorney.” In probate and estate planning cases, you won’t find the same peace of mind by using forms or document preparation companies that you will with an attorney. We like to show the value in hiring our firm, but when the forms break down the value will be clear, and we’ll be here to help.
All of the above is for informational purposes only. By me writing, and you reading the above, we have not formed an attorney-client relationship. Reasonable people know that stuff, but we have to say just in case.
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