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The Legal Risks of Revising Your Estate Plan


You are generally free to amend your will or trust during your lifetime. So if you decide your present trust is inadequate, for example, you can revoke it and establish a new one. But keep in mind, any amendments to your overall estate plan may lead to more complications down the line, particularly if dissatisfied family members attempt to undo your changes in court.

Dueling Wills, Dueling Lawsuits

Take this recent decision from the Florida Fourth District Court of Appeal, Cohen v. Scarnato. This is an ongoing will and trust contest proceeding. The decedent in this case was a woman who created a will and revocable trust as part of her estate plan back in 1992.

As is typical for revocable living trusts, the decedent initially served as her own trustee. But she later decided to resign as trustee in favor of her daughter and granddaughter, who served as co-trustees and were also beneficiaries of the trust.

In 2016, the decedent decided she was dissatisfied with the co-trustees’ management of the trust. So the decedent exercised her right to revoke her will and trust. She subsequently created a new will and trust disinheriting her daughter and granddaughter. The new estate plan favored the decedent’s son.

The daughter and granddaughter responded by filing a lawsuit in Broward County against the decedent and her son, alleging in effect the decedent lacked the mental capacity to alter her previous estate plan. They filed the lawsuit in Broward because that was where the decedent executed the original will and trust.

But the new will and trust were executed in Flagler County. After the decedent passed away, her son moved to probate the new will in Flagler County. The daughter and granddaughter simultaneously moved to probate the old will in Broward County.

Obviously, this led to even more confusion. The judge overseeing the Broward County lawsuit decided it would make sense to transfer that case to Flagler County “in the interest of justice and judicial economy.” But the Fourth District disagreed and reversed the transfer order. It explained that it made more sense–and was more consistent with the law–to delay hearing the two trust-related cases until the Broward court could resolve the issue of whether the new will was valid. This is because the validity of the trusts are tied to the will.

Speak with a Lee County, Florida, Estate Planning Attorney Today

One lesson from this case is you should always take great care when naming a successor trustee or personal representative in your estate plan. Do not feel obligated to name someone as your fiduciary just because they are a child or relative. Managing a trust or estate is a serious responsibility. And trying to undo a poor choice later may prove difficult–or impossible, if you have already died.

If you need advice from a professional Fort Myers estate planning lawyer on how to properly make (or amend) a will or trust, call the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free consultation.


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