Wills and Probate
What exactly is a Will, and Doesn’t It Avoid Probate? A Will is a document that gives instructions to the Personal Representative and the probate court as to how your assets will pass to your heirs and beneficiaries after your death. Any assets that pass to your heirs through a Will are guaranteed to go through probate. Your Will should have four main parts. The first is the nomination of a “Personal Representative” (sometimes called an executor in other states) who will manage and administer your estate after your death. You may also appoint someone to serve as guardian for your minor children. The second is the statement directing how your assets will be distributed to your beneficiaries. The third part of the Will specifies any special powers or authority that the Personal Representative will have to administer the estate. These powers include the power to sell real estate without court approval. Finally, there is the execution portion of the Will. This is where the testator (man who makes the will) or the testatrix (woman who makes the will) signs the document as his or her Last Will and Testament and where the attesting witnesses also sign the Will. It may also contain a self-proving affidavit as described earlier.
Advantages of a Will. A Will provides a plan for distributing your assets at the time of your death and allows you to decide who will be the Personal Representative of your estate. The Will is a pro-active method of planning your estate and gives you a large degree of control as to what happens to your assets after you are gone.
Disadvantages of a Will. A Will does not avoid probate. Any assets passing through the Will are subject to the costs, delays and lack of privacy of the probate process. Generally, probate administration costs between 4% and 8% of the total gross value of the portion of your estate passing through probate. These costs include Personal Representative fees, attorney’s fees, court costs and publication fees. Probate administration also takes a minimum of five months to complete and it is not unusual for a typical estate to drag on for a year or longer. Finally, probate proceedings are a matter of public record. Anyone can find out who your estate is distributed to and, even though the inventory of your estate is not open to the public, there are methods for finding out what assets are in your estate and the value.
Also, a Will only becomes valid at your death. It does not address incapacity during your lifetime. An estate plan that only consists of a Will does not prevent the necessity of a guardianship if you are unable to manage your affairs during your lifetime.
What Happens if I Die Without a Will in Florida? In Florida, if you die without a Will, the state doesn’t take everything – but it does dictate who does. You’ve probably heard the warning, if you don’t draw up a Will, the state will draw one up for you. That is exactly what happens in Florida.
If you die without a Will, your probate estate is considered to be “intestate.” In those cases, the distribution of your assets will be governed by Florida’s law of intestate succession. It is a directive of what the Florida legislature believes is a fair allocation of your estate. Unfortunately, what the state believes is fair and what you believe is appropriate are often two completely different things.
It is important to note that intestate succession only affects property in the probate estate. All jointly owned property with a right of survivorship, all accounts with “Transfer on Death” provisions and all pensions, annuities and insurance policies with properly designated beneficiaries are not affected by intestate succession, because they are not a part of the probate estate. They automatically pass to the surviving joint owners and the beneficiaries named by the decedent. Likewise, property titled in the name of a revocable trust is not part of the probate estate and will pass to the beneficiaries named in the trust.
Any property owned solely by the decedent at the time of his or her death with no contractual means to distribute it will in the probate estate and subject to intestate succession if there is no valid Will.
Leaving a Surviving Spouse
So who gets the property in that situation? That depends on a number of factors. First, did the decedent leave a surviving spouse? If so, the following rules apply:
1. If there is a surviving spouse and the decedent has no living children or grandchildren or great-grandchildren (lineal descendants), then the surviving spouse gets the entire probate estate.
2. If the decedent has lineal descendants, and all of them are also lineal descendants of the surviving spouse, then the surviving spouse gets the first $60,000 of the probate estate and half of the balance of the probate estate. The lineal descendants split the remaining half.
3. If the decedent has lineal descendants, and one or more of them are not lineal descendants of the surviving spouse, then the surviving spouse gets one-half of the probate estate and the lineal descendants divide the other half equally among themselves.
Except for Homestead
If the decedent is survived by a spouse and lineal descendants, then the surviving spouse will receive a life estate in the homestead, and after his or her death, the title to the homestead will pass automatically to the lineal descendants of the decedent who were alive at the time of the decedent’s death (not the spouse’s death). This distribution to the lineal descendants is made “per stirpes.” This means that if one of the decedent’s children dies before the decedent, the deceased child’s share will be divided equally among the deceased child’s children.
If There's No Surviving Spouse
If there is no surviving spouse, then the entire probate estate is distributed as follows:
1. Equally among the lineal descendants of the decedent. This distribution is made “per stirpes,”
2. If there are no lineal descendants (this means no children, grandchildren, great-grandchildren, etc.), then the entire probate estate is distributed to the decedent’s father and mother, or to the survivor of them.
3. If the decedent has no lineal descendants and no surviving parents, then the probate estate will divided equally among the decedent’s brothers and sisters and their descendants, per stirpes.
4. If we still haven’t found anyone to give the estate to, then one-half of the estate will be distributed to the decedent’s paternal side of the family and one-half to the decedent’s maternal side of the family. In doing this, we will look to the grandparents. If they are not surviving, then to uncles and aunts and their descendants.
5. If there are no relatives of the decedent, then the estate will be divided among the descendants (or other kin as described above) of the last deceased spouse of the decedent.
6. If we still can’t find anybody, then to the descendants of the decedent’s great-grandparents – but only if any of them were Holocaust victims (seriously).
7. Finally, if there are no persons to receive the estate after going through all of the steps above, then the property will escheat to the State of Florida.
As you can see, dying without a Will can cause unintended consequences and a lot of confusion.
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