Why should I hire an attorney to draft my will or trust? I can easily just buy one of these estate planning documents online for a fraction of the cost of an attorney. However, there is a major reason why you want to have an attorney draft your estate planning documents for you, especially if you are making substantial changes to your estate plan, such as adding or subtracting beneficiaries. Your attorney is a third witness to your estate plan and may be an extremely valuable witness if your new will or trust ends up in litigation.
Florida law only requires two witnesses to a will or trust in order for it to be valid.
Under section 732.502, Florida Statutes, a person creating a will must sign in the presence of two attesting witnesses. These witnesses must also sign the will in the presence of the testator. The requirement of having two witnesses present and signing the will after the testator is the one area where you can gain an upper hand in litigation over a will or trust.
Under section 736.0403, Florida Statutes, a trust with testamentary aspects, which includes distribution after death of the testator, is required to be executed with the same formalities as a will.
The drafting attorney.
Enter the drafting attorney. Testimony from a drafting attorney can be extremely helpful in litigation over a will or trust. For example in an undue influence case, testimony from the drafting attorney can provide the court with important evidence of the true intentions of the testator of the will or grantor of the trust. The court knows that, under attorney client privilege, the attorney and client can have a conversation about the true intentions behind an estate plan. Once the testator or grantor has passed, they cannot come to court to testify about what they wanted. Therefore, his or her attorney is the most important witness to support the validity of the document.
But what about the other witnesses to the will that are required by statute? Won’t their testimony be important? The answer to these questions is the typical lawyer’s answer: it depends. Of course, the witnesses are important to establish that the document was properly executed according to the statutes. However, standard witnesses to a will or trust may not have much knowledge of the intentions of the testator or grantor and may not have interacted with the testator or grantor much before signing. Therefore, in an undue influence or lack of testamentary capacity action their testimony may not be of much value to the court.
Finally, an attorney can be seen as a more reliable and trustworthy witness in the eyes of the court. When a judge is deciding an undue influence case, they want to determine what the actual, uninfluenced, intentions were of the testator or grantor. The drafting attorney, who hopefully has actually had conversations with the testator or grantor, can provide testimony of what those conversations were. Hopefully, this will support the defense of the will or trust and lead to the decedent’s wishes being upheld by the court.
Does an attorney drafting your will protect you in other ways?
When someone comes to our office for estate planning, we take other measures to make sure there is no undue influence. We kick other family members out of the room during the consultation. We have music playing in our common area and the waiting room to make sure the conversation is confidential.
We ask in no uncertain terms “Is this what you want? Are these your wishes?” This can be very important when there is an asymmetrical distribution of assets among beneficiaries or major changes to a prior distribution plan.
One of the most important things you get when you hire an attorney to draft your plan are witnesses. We provide witnesses at the execution of the estate plan. Finding reliable witnesses who are not previously known to anyone can increase their credibility to the court.
Contact us today to schedule a free estate planning consultation.
It’s important to remember that after you die, you can’t go to court to testify in support of your estate plan. Therefore, it’s important to have a trustworthy, competent attorney to drafting your estate planning documents. As described above, if you have an attorney draft your documents, not only will you have confirmed those documents were created and executed correctly, but you will also gain another witness on your behalf in the event there is any litigation. We have both litigated these types of cases and have drafted many estate plans for clients. Contact us today to schedule a free consultation.