To Will or Not to Will? The Primary Probate Question

Because we are top  probate attorneys in West Palm Beach  at Doane & Doane, we get a lot of client questions regarding probate.  Of all the questions that clients ask, however, the Number One question is the age-old query – “What happens if someone dies without a will?”

 This article will tackle that topic by discussing the basics of what a will is, and what happens if you pass away without one.  More and more these days, it can be difficult to save for retirement, let alone plan for your family’s future after you have passed.  That is why reading through this blog is a good first step to thinking about  estate planning   and probate issues.

A good next step, of course, is to talk with a probate attorney in the West Palm Beach area about what options you have with regard to drafting, or updating your will.  You can also discuss strategies with regard to estate planning as well. Remember, you do not have to own a mansion and several yachts to think about estate planning. Whatever your assets are, it is important that they are distributed in a way that follows your wishes.

Talking to a probate attorney at Doane & Doane might be worth it.  We can provide a free consultation to give you the basics, and then you are armed with better information on whether you want to go forward with your will and an estate plan.  Call us for more information at 561-656-0200.

A will is, essentially, your wishes as to how your assets are distributed after you pass away.  You can name the beneficiaries to whom you want your assets to go. You can also designate an executor – in Florida law, called a personal representative – who will administer your probate estate.  

Of course, your wishes must be in writing.  You cannot tell someone your wishes and expectations that a probate court will rely on the word of another person, particularly if that person is a beneficiary. 

Therefore, a will is a written document, signed by you, and signed by witnesses, that need to meet the requirements of Florida law.  A probate attorney in West Palm Beach, or whatever area of Florida you reside, can assist you to make sure that your last will and testament comports with all legal requirements in Florida.

Now, if your will disposes of all of your probate assets and it properly designates a personal representative, then the will takes precedence over any provisions of Florida law that might kick in where a will is deficient.

If, however, your will is not valid, or you do not have a will at all, the beneficiaries who will receive your probate assets and the selection of a personal representative will flow from provisions in the Florida law.

The term for someone who dies without a will is that the person “died intestate.”  First and foremost, have no fear that if you die without a will all of your property goes to the State of Florida automatically.  That is not how the law of intestacy works. The only time that a decedent’s assets go to the State upon their death is if that person has no heirs.

But, if you have heirs but no will, then the Florida law dictates how your assets are distributed.  Part I, Chapter 732 of the Florida Statutes is specifically where you can find the rules regarding those who die without a will.  Some of those Florida laws are summarized here as follows:

1. If you have a spouse, but no other children, grandchildren, parents, or another family, then the surviving spouse receives all of your assets.

2. If you have a spouse and children, and your surviving spouse has no other family, then the surviving spouse receives all of your assets.

3. If you have a spouse and children, and your surviving spouse has other family members, then your spouse gets one-half of your assets, and your children get the other half.

4. If you were unmarried but survived by children (or other family members), then those surviving family members will receive all of your assets.  Florida law defines how the assets are divided. Typically, it goes by generational level. So, your children will receive your assets, but if a child passed away before you did, then the portion of your assets for that child will go to that child’s children (your grandchildren) instead.

5. If you were unmarried and had no children, then your parents will receive your assets, or your brothers and sisters if your parents are no longer living.

6. Absent close relatives, Florida law then allows for your assets to go to more remote heirs.

Of course, the distributions discussed above are subject to particular exceptions, like homestead property, exempt personal property, and a statutory allowance to a surviving spouse.  Thus, there may be some changes or differences from the distributions above. But, the above list should give you a sense of how Florida law would handle your estate if you pass without a will.  

As you can see, there is a logic to the Florida law for those who die intestate.  The law appears to allow assets to be passed to the family members and relatives you would most expect to receive assets at someone’s passing.  

That said, there is a value in making sure that you have some control over how your assets are handled after your death.  You have worked hard all your life to build an estate.  

Plus, your estate is not just made up of money, but rather heirlooms and keepsakes.  Maybe you have a prized guitar collection, a baby grand piano, artwork that means a great deal to you, or prized antique furniture that you love.  All of that has more meaning if you pass those things on to those who you believe will get the best use out of them, or appreciate them the most. 

Contact Doane & Doane to learn about your options when it comes to drafting a will and planning your estate at a reasonable cost.  Call us, the probate attorneys in West Palm Beach today at 561-656-0200.