The inevitability of death is a topic many prefer to avoid, but planning for the future is a responsible and necessary aspect of life. One crucial element of this planning is the creation of a Last Will & Testament (or a “Will” for short). Surprisingly, a significant number of individuals overlook or delay this essential task. In this article, we’ll explore the consequences of dying without a Will, a legal scenario known as “intestacy”.
What is a Will and Why is it Important?
A Last Will & Testament is a legal document that outlines how a person’s assets and belongings should be distributed upon their death. It is a vital tool for individuals to express their wishes and ensure that their loved ones are taken care of. However, if someone passes away without a Will, the legal system steps in to determine how their estate will be divided.
Intestacy: Letting the State Decide
Dying without a Will means dying “intestate”, and this can lead to a cascade of consequences. When there’s no clear instruction on asset distribution, the State’s laws will dictate the process. Each state has its own rules for intestacy, which can vary widely. Typically, the deceased person’s assets are distributed among their surviving family members, such as spouses, children, parents, or siblings, based on a predetermined hierarchy.
Florida intestacy laws provide that if you are married, your spouse inherits all your assets but if you had children from another relationship or marriage, your spouse will receive 50% and your children will receive the other 50% of your estate. If your spouse has children from another relationship or marriage and you also have children with your spouse, your spouse will receive 50% and your children split the other 50% of your estate.
If you have no spouse or children (including any grandchildren), your parents will be entitled to your estate. If you do not have any spouse, parents, children, or grandchildren, your estate will be divided amongst your siblings.
The Florida intestacy statutes divide assets “per stirpes”, meaning that if one of your beneficiaries dies before you do, their share of your estate is divided equally among that deceased beneficiary’s descendants.
Potential Disputes and Family Strain
Intestacy may open the door to family disputes and conflicts. Without explicit instructions, misunderstandings can arise about who is entitled to what, leading to legal battles among heirs. This can strain relationships and result in prolonged court proceedings, causing emotional distress for the grieving family members.
Guardianship of Minor Children
For parents of minor children, creating a Will is even more critical. Without a Will, the court will appoint a guardian for the children based on its own judgment, which may not align with the parents’ preferences. This lack of control over the fate of their children can be a significant concern for parents who have not made their wishes explicit through a Will.
The Role of Probate
Probate is the legal process through which a deceased person’s estate is administered. When there is no Will, probate becomes more complex and time-consuming. The probate court must determine the rightful heirs, validate the assets, and oversee the distribution process. This can result in delays, stress, and additional costs.
It’s important to note that though a Will is an important estate planning document, having a Will does not avoid the requirement for an estate to go through probate. Assets must be titled in a manner that avoids probate, such as leaving a payable on death beneficiary for retirement and bank accounts, or retitling real estate as joint tenancy with rights of survivorship or in the name of a revocable trust or Enhanced Life Estate Deed (a/k/a “Lady Bird” Deed).
How Farshchian Law Can Help
The consequences of dying without a Will, or intestate, can have a profound impact on the deceased person’s loved ones. To ensure that your wishes are honored, and your family is provided for, it’s crucial to create a clear and legally binding Last Will & Testament. Taking the time to plan for the future can spare your family from unnecessary stress and ensure that your legacy is carried out according to your intentions.
For a free consultation and to learn more about our estate planning and real estate services, call us today at (800) 604-1871, or email us at Info@JFRealEstateLaw.com. We can also assist with retitling your assets in a manner that avoids probate all together. We provide estate planning, real estate, probate, and closing/title services throughout the State of Florida.