This post is a commentary on the Florida Will Reformation statute.  Pursuant to Florida Statute Section 732.615, anyone with an interest in someone’s Will has a legal right to challenge the plain language of the Will in seeking to reform the Will.  This creates voluminous nightmare scenarios where friends, family members, acquaintances and complete strangers may be allowed to completely disrupt the probate process by claiming the deceased intended to leave that person all or a portion of the deceased’s property.

The language of the Will Reformation Statute states that even if the terms of the Will are perfectly clear, any interested person may seek to “reform” the Will by claiming the Testator intended something other than what is stated in the Will.  The Statute undermines hundreds of years of Probate Law requiring very exacting Will execution standards.  For instance, in Florida a Will must be executed in the presence of two or more Witnesses and the Witnesses must sign in each other’s presence.  To amend your Will you cannot simply scratch through a provision, initial the change and add additional language.  Why then does the Florida Statute allow a Court to, in essence, scratch through a change in your Will and rewrite it despite any ambiguity in the Will?

It leaves Testator’s and Estate Planning attorneys alike wondering whether it might not be better to simply die intestate.  Dying intestate would preclude any interested party from claiming a portion or all of the deceased’s estate.

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What is a Joint Tenancy?
A Joint Tenancy is a legal arrangement where two or more people or businesses own an undivided interest a piece of property.  Often referred to as a Joint Tenancy with Right of Survivorship, the person or business that outlives all other owners will become the sole owner of the property.  A Joint Tenancy is different from a Tenancy in Common in that a Tenancy in Common allows each property owner the right to sell, trade or assign his or her rights in the property.  The ownership interest of a Tenant in Common is transferred to the heirs of the Tenant instead of dissolving upon the death of the owner or dissolution of the company.

Benefits of Joint Tenancy
Joint Tenancy ownership is often used by spouses where each spouse desires to leave the property to the other spouse.  In a spousal situation, when one spouse dies the property will automatically pass to the other spouse without having to go through the probate process.  This is not necessarily the case under a Tenancy in Common where the property would have to go through the probate process for the living spouse to obtain ownership of the entire piece of property.

In addition to Joint Tenancies, most states have provided for the transfer of property at death through Transfer on Death Deeds (or Transfer on Death Accounts), Enhanced Life Estate Deeds and other types of related deeds.

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