Page 15 - Senior Scene Magazine December 2017

What can disrupt an estate
Senior Scene® | December Issue
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H1019_MKN142G Accepted
plan?
By Attorney Truman Scarborough
An estate plan may be successfully challenged if:
1] The document was forged.
2] There was fraud because false information was presented to the person creating the estate plan with an intent to de- ceive.
3] The Will or Trust was signed under duress (pressure).
4] There was a failure to include essential provisions. For example, a Will or Trust must address what happens to the balance of the assets (the residual) after speci c bequests are distributed.
5] There was ambiguous or con icting wording in a critical component of the Will or Trust.
6] There was a failure to sign or witness as prescribed by Florida Law. For example, there must be two witnesses to a Will who are required to sign in the presence of each other. 7] There was a lack of testamentary capacity. This requires an understanding of: 1) the nature and extent of one’s as- sets, 2) one’s natural heirs, and 3) the way property will be distributed under the proposed Will or Trust.
8] There was an insane delusion. This is believing some- thing that simply is not factually true. A person can possess testamentary capacity, yet suffer from an insane delusion. Where lack of capacity would nullify the entire Will or Trust, an insane delusion may impact only part of the document. 9] There was undue in uence. In Florida a Will or Trust is
null and void if obtained by undue in uence. There is a pre- sumption of undue in uence when the person exercising the in uence: 1) substantially gains as a bene ciary, 2) occupies a con dential relationship (like a child, caregiver, adviser), and 3) was “active in procuring” the gift, which includes in- volvement with the attorney who prepared the will or trust. 10] There was a failure to make a new Will / Trust after a marriage. Unless there is a Nuptial (Marital) Agreement, the new spouse has a right to receive what a surviving spouse
is entitled to when there is no Will. When there are children from a prior marriage it would be one-half.
11] There was a failure to recognize a surviving spouse’s rights under Florida Law. Regardless of what a Will or Trust provides, without a Nuptial (Marital) Agreement the surviv- ing spouse has rights to:
The Homestead: If the home is titled just in the deceased spouse’s name the surviving spouse receives a life estate or a one-half interest in the home.
Exempt Property: A surviving spouse is entitled to house- hold furniture, appliances, and furnishings up to $20,000, plus two of the deceased spouse’s vehicles.
An Elective Share: The surviving spouse may elect to receive 30% of the deceased spouse’s property that is not going
to the spouse by some other means. This includes probate assets, property in revocable trusts, joint accounts with sur- vivorship, payment on death (POD) accounts, transfer on death (TOD) accounts, retirement plans, and transfers within one year of death.
To guard against the Will / Trust being overturned after the client’s demise, attorneys take various precautions. For example, to avoid an allegation of undue in uence, the at- torney probably will not want anyone but the client present when the estate plan is discussed.
For further information on estate planning you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 - 4770. His of ce is located at 239 Harrison Street, Titusville, Florida. SS
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