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This is one of the most common questions I get on my practice. Most people are afraid that if they die without a will, the State of Florida will take their property. In almost all cases this will not be the case.
Dying without a will is what we call dying “intestate.” Conversely, dying with a will is called dying “testate.” If you die intestate, meaning without a will, the Florida Intestacy Statutes will dictate the distribution of your assets at death.
Believe it or not the State of Florida has an estate plan set up for you. In some situations, you may be okay with the plan that the lawmakers crafted for you. In other situations, you may want to create a will to tweak the plan and make it custom to your intent and desires.
Not at all, a will only transfers property that you own individually or in conjunction with someone else, but that does not have a beneficiary designation. For example, bank accounts, IRA, annuities, life insurance, and most investment vehicles in financial institutions, you can place a beneficiary who will inherit if you die. This inheritance passes by operation of law and not through the will.
In fact, if you have a beneficiary under your bank account and you devise that bank account to a separate beneficiary under your will, the bank account beneficiary is likely to control and not the will. This is shocking to most people.
Therefore, if you have proper beneficiary designation in place on your financial institutions, those assets can pass to your beneficiaries soon after your death.
Real property is a bit more complicated. If you own the property alone under your individual name, then a will does dispose of the property at death. However, if you own the property as joint tenants with right of survivorship or as husband and wife, then the real property will pass outside of the will. I have an article that explains ownership of real property and how it affects you for probate purpose that I recommend you look at here.
When you die without a will and the property is controlled by the Florida Intestacy Statutes, meaning the property did not have a proper beneficiary designation, then the property will need to get probated.
Probate is a legal process in Florida that is supervised by the court. The main purpose of the Probate system is to satisfy any of your debts, pay taxes, and distribute your property to the rightful beneficiaries.
If you qualify for a summary administration, which is a simplified administration, the probate administration can take a couple of months. However, if you are required to do a formal administration, then the probate administration can take anywhere between 6 months to over a year in time. During this time your property subject to administration will be in the supervision of the court.
During a formal administration, a personal representative is appointed to administer your assets. Usually your spouse has a preference, if not a majority of beneficiaries can select a personal representative to act on behalf of the estate. The decision of who will act as a personal representative can sometimes be a contested matter.
Sadly, some members in a family do not trust each other or there is bad blood between them. Being appointed personal representative over another family member can sometimes be a big deal.
If you properly create a will, then you will be able to designate who you want to serve as a personal representative. You may select any person who is a resident of Florida who is 18 years old and physically and mentally capable of acting. Also, the personal representative cannot have any felonies. If they are not a resident of Florida, then they must be related to you by blood, like a son or daughter.
If you die without a will and you have minor children, the surviving biological parent will become sole guardian and will have custody of the child. However, if no biological parents surviving you, then a member of your family will most likely petition the court to become guardian of your child and for sole custody of the child.
Having a proper will assures you that you appoint guardians for your children in the event one needs to be appointed. Although a judge is not obligated to appoint the person you nominate, in practice, so long as the person is qualified, the judge will go with the person you select.
This is an important decision that should be decided by you.
In Florida we have the Florida Intestacy Statute. It dictates who will inherit your property should you die without a will.
The first preference is your spouse. Whether your spouse receives 100% or 50% of your probate assets will be determined on whether there are children from different marriages. If all your children are from the same marriage or if there are no children, then your spouse will get 100% of the assets. If there are children from different marriages on either side, then your spouse receives 50% and your children receive the remaining 50% in equal parts.
If you are not married, then the Florida Intestacy Statutes gives everything to your descendants, meaning your children. If a child has died, his share passes that child’s children, or if there are none, then it passes to your remaining children.
If there are no children, then your estate passes to your parents. If there are no parents, then brother and sisters or their kids. If you notice, we are going down the line of succession.
This questions usually comes up when someone calls me for a consultation. They are afraid that the State of Florida will keep their property. Florida is not in the business of taking away property from its residents.
In order for the State of Florida to keep your property at death, legally called escheat, your line of succession must be pretty much terminated. If there are blood relatives surviving, whoever is entitled based on the line of preference will inherit your property.
The answer is yes. The location of the beneficiary is not an issue. Even beneficiaries located in troubled countries like Cuba can inherit assets in the State of Florida.
Creating a will does not have to be a scary process or unduly cumbersome. I am here to assist you and answer all of your questions. My office offers reasonable prices and a variety of payment options. Make sure you leave your wishes in writing.
Let me know if you found this article valuable. Make sure to share it with your friends and family. Mention that you read this article and I will provide you a discount when I draft your will.