Last Will & Testament as a Suggestion
Portia B. Scott, J.D., L.L.M. • May 12, 2022

Your Final Word???

Many folks presume that a Last Will and Testament is an absolute declaration which must be followed. This is not the case.

 

Though given enormous weight by a Probate Court, a Will is often actually treated as an assortment of suggestions by the person whose signed the Will. For instance, if you, in your Will appoint your friend, Betty, to be your Personal Representative (sometimes called Executrix or Administratrix) but Betty lives in another state or is a convicted felon. She will not be eligible to be appointed by the Court as the Personal Representative (the “PR”) and a back-up choice will be needed.

 

Similarly, your PR has very limited authority until your Will is presented to a Judge in a Probate proceeding and the Judge finds that the Will is acceptable (“admitted into probate”) and so is the nominated PR (not a felon and either a close relative or resident of Florida).  Only then will the Court issue the document which gives authority to the PR, her “Letters of Administration.”

 

Once the PR is appointed and empowered, she starts gathering together your assets and making arrangements for finding out to whom you may owe money, for payment of your last expenses and reporting all of that to the probate Court, with proof. Only after all potential creditors of your estate are identified and their claims evaluated and paid (or contested), may your PR start making distribution of the remaining assets according to directions you put in your Will.

 

What if there are not enough assets in your estate to pay all your debts? (Consider that you died in an automobile accident which was your fault and the other driver was hurt very badly. The other driver gets a judgment against your estate and ends up with most of your assets.) 

 

If there are insufficient funds to make all of the gifts you have in your Will, the specific gifts get paid first. So, the $5,000.00 gift to your church (which you thought would be only a small percentage your estate when you signed the Will) gets paid before the other, less specific gifts. It could be, that you thought you were leaving $500,000.00 to your son and only $5,000.00 to the church. But if your estate is only $6,000.00 when all the debts are paid, then the church gets its $5,000.00 and your son, who was to inherit “everything else” only gets $1,000.00.

 

Better to leave a specific gift as a percentage with a cap, such as “1% of the value of my estate up to $5,000.00.” 

 

If your estate does not have enough money to pay all of your debts, even your specific gifts, such as shares of stock, bonds or your art collection, will not be given to the people you wanted to receive them. Those types of assets will be used to pay the debts of the estate.

 

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The time for using unregulated Lady Bird Deeds might be ending.

By By Portia B. Scott, J.D., L.L.M. • September 24, 2026
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MY MOTHER, THE GRAMMAR TEACHER, WOULD BE SO PROUD: We Have Our Own "Comma" Case

By Portia B. Scott, J.D., L.L.M. • July 22, 2026
One of the most absurd things for law students to grasp in that all-important first year, is the idea of what can be considered "ambiguous." (Ambiguity is "an uncertainty of meaning or intention, as in a contractual term or statutory provision.") If language is deemed "ambiguous," what happens next depends on where this ambiguity is found. The ambiguity can be subject to interpretation of a Court - if it is in a statute. If the Court has to use interpretation, there are several tools they can use to derive meaning and intent from the writers of the statute. This search for "Legislative intent" is sometimes easy if there is a part of the statute stating specifically what the Legislature was trying to do. Without that, however, judges will look at what the plain and simple language would mean. If that does not help, then they can look at the surrounding language, the other terms, what might be excluded, what would make the language harmonious with the other laws on the topic... All kinds of factors are examined to determine what the law is trying to say. However, if the ambiguity is found in a contract, the options are different and depend on whether the ambiguity is an obvious mistake ("Art is the Buyer" and then, later "The Buyer, Bert" is written in the same contract) or whether it is a more sneaky ambiguity. Here is where the comma comes into play. The Tariff of 1872 misplaced a comma, resulting in fruits not being subject to the tax. The tariff was trying to say that fruits and fruit plants would be subject to the tariff, but, by placing a comma where it did not belong, fruits become tax free and only fruit-bearing plants were subject to the Tariff. Another is a case where there would be no overtime payments for work done for "...drying, marketing, storing, packing for shipment or distribution" of foods. Because there was no comma between "shipment" and "distribution," the Court found it questionable if "shipment and distribution" were one joint act or two separate ones. The result? Workers got their overtime payments. Now, we have a case, decided July 22, 2026 by our appellate court, that a comma found between "construed according to the laws of the State of Florida" and "with venue in Collier County," created an ambiguity allowing venue to be set in another County (Martin). The comma controlled and there is an ambiguity, allowing the action to be filed in Martin County, rather than Collier. The benefits of filing in one county verses another, well, that would be an entirely different article.  Just remember: Watch those punctuation marks folks! Ambiguities may be found everywhere!