In our estate planning practice, we regularly have new or prospective clients who will meet with us, give us their information, and ask that we prepare estate planning documents for them. We then will prepare draft documents to send them for review. Once the documents are reviewed and any questions answered or revisions are made, we will have them come in for a signing. Once the estate documents are signed, they immediately go into effect and provide various protections to the person who executed those documents.
Except in unusual circumstances, the normal turn-around for our firm completing this process is 20-30 days. When there are unusual situations, such as a serious illness, we will push the timetable up to get the documents in place.
Occasionally, we will have a new or prospective client meet with us, give us their information, and ask that we prepare their estate planning documents and then say something that is a huge misunderstanding. It goes something like this: “Now that we’ve met with you and you know our intentions and have our information, are we protected prior to the time we come in to sign the documents?” In other words, they’re asking if a lawyer knowing their intention is enough to protect them during that interim between the first meeting and the signing. The answer is an emphatic “No!” You are not protected during that interim time!
Estate documents, whether in the form of a Last Will and Testament, a Revocable or Living Trust, a Durable Power of Attorney, or a Living Will, must be in writing. For example, as stated in Section 732.502, Florida Statutes, “Every will must be in writing…” They must also be duly executed. This usually means signed in the presence of two witnesses and a notary. Verbal intentions, regardless of who they are made to, are not enforceable nor are they binding.
Here are some examples where a person may think they’re protected but they are not:
“My lawyer is working on my documents.”
“My family knows what I want.”
“I wrote down some notes about what I want.”
“I have draft documents which I’m still reviewing” (but as of yet, have not executed).
Think of this situation like the following example. Your house needs a new roof. You speak with a roofing contractor, your sign an agreement to have the work done, and the roofing supplies are delivered. You’re feeling pretty good about the fact that you have the process started to have the roof repaired. However, before the roofer comes out to do the work, a hurricane brews up in the Gulf of Mexico and is headed your way. You might think you’re OK since the roofing contractor is in place and the roofing materials are on site. Everything is ready to be done. But don’t kid yourself, all of those steps mean nothing if the roof never gets replaced and the hurricane strikes.
The same is true with estate planning. You can speak with the attorney and family about your wishes. You can give your attorney your information and instructions. You might even have draft documents from the attorney. But rest assured, if there is a need for your estate documents such as an illness, incapacity, or death, your intention, your discussions, and even draft documents mean nothing if the written documents are not duly executed.
