South Florida Estate Planning Law : Florida Estate Planning Lawyer & Attorney : David Shulman Law Firm : South FL Wills & Trusts

I recently discovered a new (to me) blog entitled the Pet Trust Law Blog, written by attorney Danny E. Meek. As you can tell from the title, Danny's blog is dedicated to the issues of estate planning for people with pets  -- especially those who want to ensure that their pets are taken care of after their death.

He recently wrote an entry on "in terrorem" clauses in wills:

I spoke with a dog owner yesterday about some estate planning for her Boxer named Molly.

Molly’s owner, Mandy, told me that her only relative is a brother that she has not spoken with for years, and she is sure that no matter how she provides for Molly in her will, that the brother will contest the matter in the courts and try to take the money set aside for Molly.

We discussed the option of establishing a trust for Molly, but Mandy was not interested in that avenue.

I then suggested that the will could include an "in terrorem" clause.

“My brother may be a bad person, but he is certainly no terrorist,” exclaimed Mandy.

I smiled and explained that an "in terrorem” clause provides that if a person unsuccessfully challenges a provision in a will, then the challenger cannot receive any property under any other provision of the will.

So, if a court finds that Mandy’s will is otherwise valid, the clause providing monies for the care of Molly will be upheld, despite the protests of her brother.

Mandy’s desire to take care of her dog will be fulfilled.
 

In Terrorem clauses can be used by a testator wishing to prevent a will contest after their death.  As Danny wrote, the clause serves as a disincentive for heirs to challenge the amount that they would otherwise receive.  However, these clauses are invalid in the state of Florida. Section 732.517 of the Florida Statutes provides that a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

So if you are a Florida resident, there are still methods to dissuade your potential heirs from challenging your will, and, if you believe such methods are necessary you should speak about those with your estate planning attorney.  However an in terrorem clause is not one of them.

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This post concerns what I see are the dangers of people buying fill in the blank Wills in stores, over the internet, or using consumer software.  And I am going to admit right up front that I have a personal and financial bias.  My job is to provide estate planning services, which may include wills, trusts, advanced directives and other documents, to clients.  Like anyone else who works for a living, I certainly prefer that people hire me and not someone else.  If instead of going to me, people buy software that purports to prepare Wills, or they buy a Will from a company that constantly advertises on the radio, then I am not benefiting financially.

But this post isn't about that at all.  If a client chooses to hire an attorney other than me then I'm not making money either, yet that does not bother me.  What bothers estate planning attorneys about store bought fill in the blanks wills and trusts, or software, or internet Wills, is that they often end in disaster.  Virtually every estate planning attorney has more than one story about a bereaved family finding out after their loved one's death that the do it yourself Will did not accomplish what it was supposed to, or wasn't properly executed and therefore was invalid.

My main concerns with do it yourself estate planning are as follows:

1. People are choosing what they need without professional advice.  Someone will get into their mind that they "need a trust" and will go onto the internet and order one.  It would be like if I woke up one morning with a stomachache and without going to the doctor decided that I needed an appendectomy.  A person needs to sit with an expert to decide whether they need a trust, and what kind, and what it should say.  And even if the person does need a trust, it still has to be properly funded, something a form can't do.
2. The "one size fits all" problem.  A fill in the blank form bought in a store or ordered over the internet is not going to be custom tailored to an individual client's needs.  Every person has their own special set of circumstances, whether it is the type of assets they own, or special provisions that might be necessary for their children.  Just one example, if you are in Florida and you own a home, the rules regarding how you may devise your Homestead are extremely complex. No preset form, or company in another state can possibly get it right, because there are too many variables, and every situation is different.
3. The Law is constantly changing.  How often are these forms updated to reflect changes in the law?  Can you have confidence that the document is valid for your state?
4. People who buy premade Wills often do not execute them properly causing the Will to be invalid.  The law regarding the execution of Wills is very strict and unforgiving.  In Florida, a testator must execute his Will in the presence of two witnesses who also must sign in the presence of each other.  There are numerous cases of Wills being declared invalid because the signing requirements were not adhered to.  If a Will is invalid then the estate passes through intestacy. An estate planning attorney is likely to have presided over the execution of hundreds, if not thousands, of Wills and will have a procedure to ensure that each and every Will is properly executed.

I understand why people buy store bought Wills or software instead of going to an attorney.  Money and time.  They see an attorney as far too expensive, and probably don't really understand what an estate planning attorney truly does.  They think the $39.95 form or $49.95 software will be "good enough." 

If time and money are the motivating factors, then you should know that it is much more expensive and it takes a lot longer to fix the mistakes after you are dead than it would have been to do it right the first time.  A Probate, especially one complicated by a Will with errors or that is invalid, will most likely cost at least 3 times as much as proper planning would have.

I'm not saying that the software, forms, or internet wills will always be invalid.  I'm just saying think of your family, and be careful.  Like anything else, there is no substitute for personalized one on one advice.

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Just a quick update to my earlier post on Anna Nicole Smith's attorneys petitioning the Supreme Court to intervene in their case.  According to Howard Bashman's How Appealing Blog, the AP is reporting that ""Supreme Court Justice Anthony Kennedy has turned down a plea for help from the estate of Anna Nicole Smith in a fight over a Texas oil tycoon's fortune.""

So I guess my hope to see Justice Scalia crying over the dispostion of her body will have to wait.

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As I Iook out the window of my office, I can see the Broward County Courthouse.  As an estate planning  attorney who also practices probate administration, having an office across the street from the courthouse makes attending hearings very convenient.  But today, as I look out at the Courthouse I am reminded of what triggered the building's 15 minutes of international fame, the Anna Nicole Smith Hearings. 

Anna Nicole Smith was a train wreck, both in life, and sadly in death.  If there ever was a case to come out of South Florida that showed how essential proper estate planning was, it was hers.  To briefly refresh your recollection, Anna Nicole Smith (nee' Vickie Lynn Marshall) died on February 8, 2007 at the Seminole Hard Rock Hotel and Casino (now with Blackjack!) in Hollywood, Florida.  Her son, Daniel Smith predeceased her by six months.  After her death the fight over the disposition of her body occupied a bored nation's attention.

There are two recent updates in the case.

First, Howard K. Stern, Smith's attorney, business manager, boyfriend, whatever, and her doctor were arrested on Thursday and charged with conspiring to furnish her with drugs.

Second, the battle over her octogenarian husband, J. Howard Marshall's estate continues.  The main combatants over Marshall's estate were Smith and Marshall's son, and they are both dead. On Monday, her estate's attorney filed a writ with the U.S. Supreme Court asking that they be allowed to start collecting on her $88 million judgment, which is still tied up in litigation.

I just hope Justice Scalia doesn't cry when issuing his ruling like Judge Seidlin did.

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