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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By Portia B. Scott, J.D., L.L.M. June 4, 2025
I have, from time to time, an opportunity to review family law agreements when dealing with a probate estate proceeding or a Trust administration. These family law agreements can take the form of a Divorce Decree, Final Judgment of Dissolution of Marriage, a Post-Nuptial Agreement, an Ante-Nuptial agreement (often called a "Pre-Nup"), mediation agreements and temporary orders which might include temporary alimony payments plus of course, the common charging liens filed by attorneys involved. I also get to review Qualified Domestic Relations Orders ("QDRO's") from time to time. Many of these documents are drafted without the help of an attorney. Sometimes, they will have been drafted by a paralegal or another lay-person, sometimes by the parties themselves. When I make inquiry of the parties about the documents, I often find the people who drafted them believe that, if there were a Judge involved in the underlying matter, the Judge would "fix" the document if it were wrong. So, if a Pre-Nup calls for extra alimony in the case of one party's infidelity, and, if that is not something the law books would allow, they believe that the Judge would tell them so and strike it from the agreement. Similarly, if someone's settlement agreement provides for one party to pay the other alimony even in the event of the remarriage of the party receiving alimony, the paying spouse believes that the Judge will tell them that Florida law does not require such payments to continue. The judge might similarly strike a provision for "permanent alimony" if the legislature had prohibited judges from ordering permanent alimony. Even if a QDRO was ordered to divide up one party's 401(k), some people believe the Judge will create the QDRO. None of this is true. If you come before the Court with an agreement, you can actually change the law as it applies to your own case. So, if permanent alimony has been ended by the legislature, but you agree to it in your settlement agreement, the Judge is not going to advise you that you are going against what authority the Court would have if you had not settled and had gone to trial. The Judge may ask you if you really agree to these terms and, if so, enter the Order requiring more than the Judge could ever have ordered at a contested trial. The best you can hope for from a Judge is when the judge sees the document - if the Judge reads it- is for the Judge to tell you to consult an attorney. If a Judge ever does tell you something like, "you really should talk to an attorney," this is a big red flag and you should take the Judge's advice. The Judge cannot, may not give you any advice other than to recommend you speak with an attorney. The long and short of it is there are reasons why it can often end up being less expensive to consult an attorney than to do some work for yourself.
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