Fort Lauderdale Probate Lawyer

Home:: Ask Mr. Thomas

Ask Mr. Thomas

Click here to ask Mr. Thomas your Probate-related question.

Common Questions:

How can you tell if a Will has been altered?
Can a child be cut out of a Will?
When is litigation the only option?
When does helping a relative become Undue Influence?
Can a Spouse be cut out of a Will or Trust?

How can you tell if a Will has been altered?

In most situations, you cannot tell by simply looking at the document. Most Last Will and Testaments that are altered or "tampered with" are done so behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
An adult child can be cut out of a Will. So long as a parent is competent, an adult child can be removed from a Last Will and Testament (and a Trust) for any reason or for no reason. If a child is not mentioned in the Will, it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Will, may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor heir.

When is litigation the only option?
When people stop communicating and one side walks away from the disagreement, then litigation becomes the only option. You'll find that if people would follow the golden rule (do unto others as you would have them do unto you), disagreements would resolve themselves without the need for attorneys. Unfortunately, not everyone follows that rule, which is when an experienced probate lawyer needs to be hired. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Of course, sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent's assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent's estate. The right of the surviving spouse to receive from the decedent's estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.