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January 31, 2023

Just because you wrote a Will doesn’t mean your wishes will be followed.

Many people are aware that if you have not drafted a Will, the chances your estate will be administered the way you wanted it to be are slim. So they have a Will drafted and then believe they have ensured their wishes will be followed. A Will can still be contested in court in certain circumstances, but that isn’t the focus of this article. First, unless your Will is entered into Probate by a Court, it’s nothing more than a letter you wrote your wishes in. The Will HAS to be filed with the Clerk and be admitted to Probate for it to be enforceable. If as far as a court is concerned, your Will does not exist, then you’re right back in the position of all those people who never had a Will drafted in the first place. I have had countless clients that don’t understand why the court considers no Will to exist for their loved ones. My clients tell me that their loved ones had a Will, that they’ve seen it in the past, or knew about it, or were told it exists by the family member who drafted it, before they passed obviously. And I have to tell them I’m sorry, none of that matters.

How can your Will not exist if you had one drafted? You made it, it exists, you know it exists. So how can a court think otherwise? Because a Will is not like an electronic title for your car that the DMV will always have. A Florida Probate court requires the original Will, the actual physical paper that you physically signed with a pen. A copy doesn’t count. Someone with a photographic memory describing it doesn’t count. Neither do pictures, video, saved Word or PDF documents or anything else. The court needs the Original Will for it be acknowledged as valid. So why is that a big deal? How can that cause things to turn out badly? Let’s go over the 4 main ways you can try to make sure your Will exists when you pass.

Option one is to file it with the Clerk of Court in the County you live in. That will 100% ensure your Will continues to exist when you pass. But you will find that many attorneys suggest you don’t do that. The reason being that once it’s on file with the Clerk, the Will is considered a public record. Anyone and everyone who requests a copy will get one. If you have sensitive personal details in your Will, assets you’d rather have kept secret while you’re alive, or think that the way you have devised your assets to family and friends will cause a lot of angst and strife if your wishes are known ahead of time, too bad. It’s all public. That’s the huge downside that causes many people to not choose this option to preserve their Will, even thought it’s the only option that’s guaranteed to protect you Will from non-existence.

Option two is to leave the Will in the hands of family or friends or somewhere in your house. There are two pitfalls with that. The first problem is that things can get lost. Lots of things can get lost, even if they are important. It can happen to your Will just as easily as anything else. Keeping it in a home safe is keeping it in your house, and unless your safe is a bank vault that nobody else can access or physically pick up and move, it’s not a guarantee.

The second problem is that after you die, a lot of people aren’t who you thought they were. If your Will not existing will give them an advantage or distribution of assets better than what they get in the Will, they might lose it on purpose, or destroy it, or hide it away and then tell everyone you have no idea where it is. You might think nobody in your family is like that, just like a lot of other people do. Yet it happens all the time. If you aren’t around anymore, your family might not care as much about your disapproval or your feelings. Greed changes a lot of people, even those you think would never act that way, if their circumstances at the time are bad, and they just really need the money.

Option three is to leave it with your attorney. Many attorneys won’t accept them, because they don’t want the responsibility of having to account for the whereabouts of your Will. Their office could burn down, or it could get lost, misplaced, or stolen. What if you have a falling out with your attorney? A really bad one? Attorneys are people too, with all the associated pitfalls that come with that. Even if there are rules or laws against it, some attorneys, even if it’s a small amount, can act unethically or with malice.

Option four is to leave it in a safe deposit box. This is probably the second safest option that doesn’t involve all your family secrets becoming public record. It’s a pretty good option, but there are still some risks. If you designate a beneficiary for your safe deposit box, that person has the chance to do all the bad acts discussed above, although this is mitigated by only naming someone you have the utmost trust in. If you become incapacitated at some point and you give someone Power of Attorney over you to handle your affairs, or someone is appointed by the courts to that position, that person can potentially access your deposit box and remove the Will. Unethical relatives or friends persuade elderly or borderline incapacitated people to give them Power of Attorney all the time, and then they empty the accounts and sell all the properties you own. If you don’t designate a beneficiary, there is a possibility the bank won’t let anyone open it. Very often the courts can order a bank to open a box, but not 100% of the time, depending on the circumstances. Then the Will sits in there forever, never existing as far as anyone else is concerned.

If you’re not concerned about family drama, and don’t care about anybody knowing what assets you have, depositing with the Clerk is always the safest bet. Otherwise, your best option is probably the safety deposit box. Whatever option you choose, you should be aware that your Will needs to be protected, and it needs to be filed with the Clerk of Court to be enforceable.

Charles Adams, Esq.

Zoecklein Law, PA

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.