Specialized laws determine what happens when you die without a valid will or trust in place. Although rumors circulated that the government can take your property if you don’t have a will, this only happens in rare circumstances.
The biggest problem with not having a will is that your loved ones will be uncertain about how you would have wanted matters handled, and your property may be distributed in a way that is against your wishes. The court could authorize the last person in the world you’d choose to wind up your affairs. If you have minor children and don’t designate a guardian in a will, the court might also choose someone you don’t approve of to serve as guardian.
Probate Can Be Costly and Delayed
Whether or not you have a will, unless you have taken steps to legally remove most of your property from your estate through a trust or other means, the assets you leave behind will probably need to go through the probate process. Probate laws are designed to ensure that creditors receive the money they are owed and that remaining property is distributed in accordance with the law.
In Florida, the judge of the probate court will appoint a personal representative to manage the estate in probate. In some jurisdictions, the personal representative is referred to as an executor or administrator. You can choose your personal representative in your will. Without a will stating otherwise, your spouse will usually be the court-appointed personal representative, if you have a living spouse. If you do not, then heirs essentially vote to choose a personal representative which has to then be approved by the court. That person will need to:
- Identify and protect all your assets
- Search for heirs and creditors
- Notify creditors following legal requirements
- Get appraisals if needed and compute the value of the estate
- Object to improper claims and pay proper claims
- File tax returns
- Pay debts in order of legal priority
- Distribute remaining assets in accordance with the law
- Take legal action to close the estate
Procedures can be simplified somewhat if an estate qualifies for summary administration.
Who Inherits Without a Will?
The Florida laws of intestate succession specify who will inherit your assets after your personal representatives have paid all your debts, including taxes. These rules are more complicated than many people realize.
For instance, if you leave a spouse behind, that spouse may inherit all of your property or only some of it depending on the circumstances. If you have children from a different relationship, your spouse would only get half the estate, and those children or their descendants would share the other half. If you had homestead property titled only in your name, your spouse receives a life estate in the home, and the children can claim their interests only after the spouse passes away unless they notify the court within a limited period of time that they elect to take a 50% interest in the home.
The law does not consider the quality of relationships. If you are estranged from your spouse, they still inherit. If you have one child who has provided care for you for years and another who refuses to answer the phone when you call, they both inherit equally under the laws of intestate succession. However, your property will not pass to the government unless your personal representative is unable to find a relative legally entitled to inherit.
Consider Working with an Estate Planning Attorney to Create a Will or Trust
You can control what happens with your property if you create a valid will. If you have an estate planning attorney create a living trust, your property can pass directly to loved ones without going through probate at all.
An estate plan can also protect your interests during your lifetime in addition to determining what happens after your death. To talk to the legal team at Amy L. Phillips PLLC about a will or other components of a thoughtful estate plan, give us a call.