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Spiro J. Verras Blog

Monday, October 29, 2018

Don’t Wait Until Your Death Bed to Make an Estate Plan

Why might a deathbed will be contested?

It’s natural to want to put off creating an estate plan.  After all, few of us wish to contemplate what will become of our assets and loved ones after we die.  At times, people procrastinate making an estate plan for so long that they end up on their death bed.  Only then do they attempt to write a will or have their attorney make a trust, but death bed estate planning could come with serious legal complications.  Our Tampa estate planning lawyers discuss why making your estate plan on your death bed or changing it when you are dying should be avoided whenever possible.

Concerns Over Competency, Coercion, and More

In order for a will to be valid per Florida law, it must meet some basic requirements.  The will creator or testator must have capacity to make the will, the will must be executed free of undue influence, duress, or fraud, and the will must be signed by the testator along with two witnesses or notarized.  When a will is created on one’s death bed, the most frequent concerns that arise are those of competency or potential undue influence.

To be considered competent to make a will, a testator in Florida must 1) understand the nature of the will, 2) recollect and understand the nature and situation of his or her property, 3) have knowledge of the people who would naturally receive his or her property; and 4) know how property is to be disposed. On your death bed, it is possible that questions could arise as to your mental capacity.  Those who are dying may be very elderly, infirm, suffering from memory loss, or potentially on heavy duty medication that renders them not of sound mind.  Waiting until your death bed to make a will might open the door to challenges as to your capacity.

Alternatively, death bed wills or changes to an existing estate plan could be challenged on the grounds of duress or undue influence.  Several estate planning cases have involved family members challenging last minute alterations to a will made by the dying individual who was perhaps being influenced in their weak state by a caretaker or another loved one who suddenly now received a significant portion of the estate.  

To avoid potentially dying without a will or creating a will when you are dying, only to have it deemed invalid, take the time now to make an estate plan while you are healthy.  Estate planning is a central part of your lasting legacy and rather than being dreaded, it should be embraced as a means of ensuring your last wishes are conveyed.

 


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