FL Wills, Trusts & Estates Specialist common mistakes
FL Wills, Trusts & Estates Specialist · Understand the traps and how to avoid them.
Drafting a will that leaves the residuary estate outright to the surviving spouse and then separately analyzing the elective share and homestead as if they were unrelated issues, instead of testing the whole plan against Florida's spousal-protection rules before concluding the will is valid.
Candidates learn the elective share, pretermitted spouse, and homestead devise restrictions as separate flashcards and never run them as a checklist against a concrete dispositive scheme. Because Florida's protections operate as constraints on the will's terms rather than as defects in execution, a facially valid will can still be partially inoperative, and candidates stop analyzing once they find the signatures and witnesses are in order.
What to do instead
Adopt a fixed ordering for every wills fact pattern: execution formalities, then testamentary capacity and undue influence, then spousal rights (elective share, pretermitted spouse, homestead devise limits), then construction of the residue. Write out each step's conclusion in one sentence even when it seems fine, so a skipped constraint is visible in your own answer.
Treating a will as revoked or amended by a later writing, divorce, or property change without identifying the specific statutory mechanism (subsequent will, physical act, divorce, revival of a prior will) and its precise effect.
Candidates pattern-match 'later event = change' and never distinguish revocation by subsequent instrument from revocation by physical act, or divorce-based revocation from lapse of a former spouse's gift. The doctrines have different scope: a divorce statute may revoke provisions for the former spouse without reviving an earlier will, and a codicil republishes the will it modifies, which changes the analysis of capacity and of omitted heirs.
What to do instead
For any revocation question, name the mechanism, cite the statutory effect in words, state what is and is not revoked, and then state whether any prior will is revived. Practice by writing the one-line 'before/after' disposition table for each scenario until the distinctions are automatic.
Analyzing a trust as valid and then ignoring the administration mechanics - trustee duties of loyalty and impartiality, allocation of receipts and expenses between income and principal, and the trustee's power to adjust - when the question asks how a beneficiary's distribution is computed.
Candidates treat trust validity and trust accounting as one topic and stop at 'the trust is valid, so the trustee distributes per its terms.' Distribution questions usually hinge on the principal-and-income allocation rules and on whether an adjustment power exists, which candidates have read but not practiced applying to numbers.
What to do instead
Before computing any distribution, identify the trust's income and principal definitions, the allocation rule for each receipt or expense in the fact pattern, whether a unitrust or power-to-adjust election applies, and the trustee's duty of impartiality. Then compute. Drill this on three or four receipts at a time until the allocation step becomes reflexive.
Confusing the roles and liabilities of trustee, personal representative, and custodian, and failing to separate the trustee's fiduciary duties from the beneficiaries' enforcement rights (accounting, removal, surcharge) in a question about breach.
The vocabulary overlaps across the wills, trusts, and probate domains, and candidates answer with general fiduciary language instead of the specific duty breached and the specific remedy. They also forget that a co-trustee or directed trustee may have a different standard, and that exculpation clauses have limits.
What to do instead
For every breach question, write four lines: the actor and role, the duty breached (loyalty, prudence, impartiality, accounting, or distribution), the standard applied to that actor, and the available remedy. Memorize the remedy menu - compel accounting, remove, surcharge, deny compensation, trace - and match one to each duty.
Answering a probate administration question by naming the correct procedural step but omitting the statutory deadlines and sequence - creditor claim periods, notice to known or reasonably ascertainable creditors, the objection window, and the timing of the petition for discharge.
Candidates memorize that creditors must be paid but not the running of the nonclaim periods or the difference between a known creditor's notice and publication. Because the deadlines are short and interdependent, a single wrong assumption about when the clock starts cascades through the whole answer.
What to do instead
Build a one-page timeline from death to discharge with each deadline, its trigger event, and who must be served. Rehearse it by writing the sequence from memory before checking, and in exam answers always state the trigger date and the resulting deadline rather than naming the period alone.
In an intestacy or partially intestate estate, distributing the entire estate to the surviving spouse or dividing equally among all children without applying the jurisdiction's specific share formula and the treatment of descendants of a predeceased child.
Candidates rely on a generalized 'spouse and children split it' intuition and never work through the actual fractional shares, the distinction between per stirpes and per capita at each generation, or the treatment of a surviving spouse when there are descendants from another relationship. The arithmetic is simple but the formula is not intuitive.
What to do instead
For every intestacy problem, draw the family tree, mark who survives, then apply the statutory formula in order of priority and compute each fractional share. Do at least ten trees covering blended families, predeceased children, and adopted or nonmarital children until the per stirpes computation is mechanical.
Computing federal estate tax by applying the exemption and rates to the gross estate without first building the gross estate from its statutory components, subtracting the correct deductions, and adding back adjusted taxable gifts.
Candidates jump to 'gross estate minus exemption times rate' because it is the formula they remember, skipping the inclusion provisions, the distinction between deductions and credits, and the portability and marital deduction interactions. The result is a right-looking answer built on the wrong base.
What to do instead
Use a fixed worksheet: list each inclusion provision and the asset it captures, total the gross estate, subtract administration expenses, debts, and the marital and charitable deductions, add adjusted taxable gifts, apply the tentative tax and then the credits, and only then state the result. Show every line even when the number is zero.
Treating the generation-skipping transfer tax, the gift tax annual exclusion, and the estate tax exemption as interchangeable thresholds, and failing to identify which transfer tax applies to a given transfer and who bears it.
All three are expressed as dollar amounts and all three change with legislation, so candidates conflate them. They also miss that the GST tax is imposed in addition to the estate or gift tax, that allocation of GST exemption is a separate election, and that the annual exclusion is per donee and does not apply to future interests.
What to do instead
Build a three-column comparison table - transfer tax, base, rate, threshold, who pays, and filing obligation - and recite it before answering. For each fact pattern, label every transfer with its tax type before doing any arithmetic, and flag whether GST exemption allocation is elective or automatic.
Ignoring the income tax consequences of planning choices - basis step-up at death, carryover basis for lifetime gifts, the grantor-trust rules, and the deduction limits for estate administration expenses - while analyzing the transfer tax only.
Candidates study estate and gift tax in isolation because the domain is named for them, and treat income tax as outside scope. But the choice between a lifetime gift and a bequest, the selection of a marital deduction vehicle, and the election to deduct administration expenses on the estate tax return versus the fiduciary income tax return all turn on income tax outcomes.
What to do instead
For every planning recommendation, add a mandatory second paragraph on income tax: basis of the asset in whose hands, grantor-trust status, and any election that trades a transfer tax deduction for an income tax deduction. Practice by taking one recommendation and writing the income tax consequence before the transfer tax consequence.
Answering a question about a fiduciary's tax elections or filing obligations by naming the return but not the election, the deadline, or the effect of making it - for example, the alternate valuation election, the special use valuation election, or the election to treat administration expenses as income tax deductions.
Candidates recognize the election names from outlines but never learned the conditions, deadlines, and consequences, so they produce a label instead of an analysis. Elections are irrevocable and mutually exclusive in some cases, which is exactly what the question is testing.
What to do instead
Keep an election card for each election: who may make it, the deadline, the conditions, the irrevocability, and the tradeoff. Before answering, state which election is at issue, whether its conditions are met on the facts, and what changes if it is made versus not made.