The AARP reports that roughly 60 percent of American adults lack proper estate planning, with only 4 in 10 having a will or living trust. This isn’t shocking news, but it is concerning, considering that settling an estate with no will in Florida is often a challenging endeavor. Although older adults tend to have a better handle on these records (which makes some sense, given that as we age, we face the reality that estate planning is important), it’s wrong for younger generations to assume it isn’t necessary, even if they aren’t wealthy. A will stipulates things like what will happen to your small children if you and your spouse die, who can make financial and health care decisions for you in the event you’re incapacitated.
The term “intestate succession” refers to the distribution of one’s estate when one dies absent a valid will. The process varies from state-to-state, but generally follows that one’s surviving spouse and other heirs will receive decedent’s possessions in order of descent.
Florida’s intestate succession laws are outlined in F.S. Chapter 732. It should be noted that state laws can frequently change, so it’s important to discuss your options with a probate litigation lawyer if you have concerns about your rights and obligations.
Only assets that would pass through your will would be affected by intestate succession laws. That means things like your life insurance proceeds, retirement account funds, jointly-owned property or property that’s been transferred to a living trust generally isn’t going to be subject to Florida intestate succession provisions.
Although no two people will have the exact same situation, the state of Florida has outlined a number of common scenarios that are applicable for many families. Much will depend on whether you have a surviving spouse, children, parents or other close relatives when you die.
In general, if you have:
- Spouse but no descendants – Spouse will inherit everything;
- Children but no spouse – Children inherit everything;
- Spouse and shared descendants (with decedent having no other descendants) – Spouse will inherit everything;
- Spouse with decedent having descendants from another relationship – Spouse will inherit half of the property that is intestate, while the surviving descendants will inherit the other half;
- Parents but no spouse or descendants – Parents inherit everything;
- Siblings, but no spouse, descendants or parents – Siblings inherit everything.
We saw that last scenario last year when famed singer Prince’s six siblings inherited his $200 million estate when he died without a will.
The one way to control this distribution if it’s not agreeable to you is to have a will in place. Similarly, spouses should not presume they will automatically receive all their partner’s property, particularly if there are descendants or if some of that property was not subject to intestate laws (i.e., retirement accounts, life insurance, etc.). It should be noted that adopted children and (generally) those born outside of marriage are considered descendants, as well children conceived by decedent but not born prior to death. Foster children, stepchildren and children placed for adoption will not be entitled to an inheritance. Grandchildren would only have rights to one’s inheritance if their parent dies before the grandparent.
In cases where disputes arise, the matter may end up in probate litigation. Our experienced Fort Lauderdale probate litigation lawyers can help.
Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Haven’t Done A Will Yet? 2017, By Barbranda Lumpkins Walls, AARP