“If We Have a Handwritten Will, But Haven’t Consulted a Lawyer, Will We Avoid Probate?”
A question that was recently highlighted in a news publication highlights an issue that creates confusion for a number of couples, and that involves uncertainty about when, exactly, enough has been done in terms of estate planning to avoid the probate process. In this case, the couple had their house established (with what is the equivalent of a joint tenancy in Florida) with right of survivorship, designated beneficiaries for their IRAs and 403bs (as well as all of their other accounts), and had handwritten their wills. However, they had yet to contact an attorney to complete the process. Their question was: Are they at least on track for these items listed above avoiding probate?
When IT Comes to Property with Right of Survivorship, You Need a Trust
Unfortunately, with this kind of scenario, a couple is really only half way there in that, probate will be avoided on the first death, but not on the second because the house has the right of survivorship; meaning that, when the last spouse dies, it will be subject to probate unless it is placed in a trust. Some might ask if they could simply add their heirs to the deed as joint tenants, however, this option is less safe as, if they are sued, the home could end up with a judgment lien or other restrictions. Unless there are no other alternatives and an experienced attorney has instructed you to do so, this is really never a good idea.
Other Reasons to Engage in Official Estate Planning
Ideally, you and your partner/spouse would create a revocable trust at some point in order to protect an asset like this. However, also keep in mind that avoiding probate isn’t the only goal when it comes to legacy planning: Other issues do and will come up, and having additional documents in place – such as power of attorney, health care proxy, advance directive, etc. – in case unexpected events, such as incapacitation, occurs.
In addition, even for those items that you think you have handled, it is always a good idea to go over them with an attorney. For example, your beneficiary designations: Do they have all of the necessary information provided for them? Does each account also have alternate beneficiaries? Do you have copies of everything in case the custodian company loses any paperwork? Any mistakes on your retirement account beneficiary forms could lead to a significant amount of income tax later on, and your children could lose the ability to stretch out distributions (and thus tax liability) over their lifetimes. In addition, with handwritten wills, you never know if they are valid and accomplish what you want them to do.
Contact Our Florida Estate Planning Attorneys to Find Out How We Can Help
If you live in Florida and have any questions or concerns about estate planning, contact our Orlando estate planning attorneys at the office of Gierach and Gierach, P.A. to schedule a free consultation and find out how we can help.