By Cassandra Jelincic, Esq., Associate Attorney, Elder Law Associates PA
Estate planning attorneys are approached daily by individuals who have lost a loved one. When I am approached by a potential client in this situation, I offer my condolences and ask the BIG question: Did they have a Last Will and Testament?
That question alone will dictate the rest of the case. That’s because there are two types of estate administration:
- An intestate estate, where an individual dies without a will and the state’s statute will kick in to dictate how the estate should be administered;
- A testate administration, or an estate that will be administered pursuant to a decedent’s wishes left in a Will.
Should someone die “intestate,” or without a Will, Florida Statutes clearly delineate who can be the Personal Representative of the estate and how the property will be distributed. Nothing, besides an agreement among those who are legally entitled to inherit, can be done to change that.
There can be documents that may alter or affect this distribution, such as a prenuptial or postnuptial agreement. However, when documents like this are presented to the court, the estate may result in litigation.
Should a potential client answer “yes, they had a Will,” we then proceed with a “testate” estate administration. A Will allows for an individual to choose who they want as a Personal Representative and their alternate if that person is unable to act. A Will also would advise the court how that person wants their estate to be distributed, which many times does not reflect how the state would distribute someone’s assets.
Examples of when you may want to dictate your estate are as follows:
- You are in your 20s, 30s, or 40s and still single (or in a long-term relationship but not legally married); You and one of your parents haven’t spoken in years or decades; Should you pass the very next day, by law, your estate would be equally split by your parents, and that parent you did not like gets 50% of your estate. What if your parent has predeceased you and you have half-siblings that you do not know of or do not like? By law, without a will, those half-siblings would have a right to inherit 50% of your estate. Should you have a Will, you could list who you want your assets to go to, and the alternate individuals you may want to inherit if your designated beneficiary predeceases you.
- You are married, have no children, and you and your spouse are in an accident. Should your spouse outlive you by a few days, a few hours, or even a few minutes, he or she may get everything. And once he or she dies, your estate plans or Florida laws dictate the distribution of property. If your spouse dies intestate, after outliving you for an hour, his or her parents or siblings may essentially inherit your estate and your family members would have nothing. Should you have prepared a will, you can add a provision of what it means to survive you, and you can state the person must survive you by a certain amount of days, and if not, it goes to another individual.
- You are married, but one of you has children from a previous relationship. Should you die without a will, Florida Statutes state your spouse gets 50% and your children are to divide the remaining 50% equally. Many couples in this situation, especially those with minor children, may want their children to inherit a larger portion of their estate, or their entire estate. Absent a Will stating this fact, Florida intestacy law controls.
- You and your spouse are older, and you have adult children who are established. There are times when a client understands their adult children may be in a better position to handle the demands of being a Personal Representative compared to their spouse or other children. Perhaps one child is an accountant and the other is doctor. The accountant may have more time, and the resources, to better handle the accounting of an estate, the negotiation and payment of creditors, and/or the gathering and transferring of assets. However, should an individual not have a Will, the spouse of a decedent is given priority to be Personal Representative. Should the spouse not want to act as Personal Representative, without a Will, you risk the children fighting over who is to control the administration.
While many may find it morbid to prepare a Last Will and Testament, it could lead to a lot less confusion (and litigation) as to how an estate may be administered and commands the state to follow your direct wishes.
Should you have any questions or concerns about your estate planning, and what type of estate plan fits best for you and your family, please feel free to call our offices. Your Will is our command.
Contact us or call 1-800-ELDERLAW or (561) 750-3850 today.