A trust can be signed, notarized, and filed away, and the family can still end up in probate court. John Marshall sees it constantly in Florida, where rules that work in Ohio or Iowa fall apart at the state line. These five mistakes show up again and again, and each one has a fix.
Outdated Documents
Old documents fail for more reasons than age. A will drafted in another state may lack the self-proving affidavit Florida expects, which forces the court to appoint a commissioner to track down out-of-state witnesses. A no-contest clause that sounds like a strong deterrent is unenforceable here. Documents signed before a marriage or remarriage can hand a surviving spouse 30% of the entire estate through the elective share.
Power of attorney forms carry the biggest risk. Florida rewrote its statute on October 1, 2011, and any power of attorney signed after that date needs specific powers initialed separately. One of John’s clients had a 2012 document drafted from an older template. When his wife needed to do Medicaid planning for his dementia care, the document couldn’t support it, and the family ended up in the guardianship proceeding the power of attorney was supposed to prevent.
Unfunded and Poorly Funded Trusts
A trust only avoids probate if it owns assets or receives them by beneficiary designation. Many people sign a trust and never retitle a single account. Others fund it the wrong way.
Married couples face the sharpest version of this. Florida protects assets a husband and wife own jointly as tenants by the entirety from either spouse’s individual creditors. Retitle those assets into a joint trust and the protection vanishes. John’s preferred setup is joint ownership with a payable-on-death designation to the trust. The homestead deserves the same care, because an out-of-state trust often lacks the language Florida requires to keep the homestead tax exemption. A lady bird deed keeps the home in the owner’s name while still passing it through the trust at death.
Wrong Beneficiaries
Beneficiary forms are fast and cheap, which is exactly why people get them wrong. One client with terminal cancer never checked her IRA, and $100,000 went to an ex-boyfriend. Naming a child directly also exposes the inheritance to that child’s divorce, lawsuits, or loss of government benefits. A properly drafted trust can protect an inherited IRA even when the beneficiary lives in one of the 42 states that offer no such protection.
DIY and AI-Drafted Documents
Online form builders and chatbots produce documents that look finished. John recently reviewed a “Florida compliant” DIY power of attorney that had the client initial every power Florida doesn’t require and skip every power it does. AI tools also can’t separate a reliable source from an outdated opinion piece, so errors land straight in the final draft.
Assuming the Family Will Figure It Out
Heirs can’t find accounts when statements arrive by email and the login dies with the owner. Siblings who fought for decades rarely make peace over a trust. When the kids don’t get along, an impartial corporate trustee often serves the family better than a well-meaning son with no legal training.
The best estate plan comes from an attorney willing to say no. Drafting whatever a client requests feels easy in the office, and a provision Florida won’t enforce accomplishes nothing for the people left behind.
If you want to learn more about Trust me, It’s Complicated, check out https://www.marshalllawpa.com/podcast