What Happens to Your Estate If You Don’t Have a Will, or It Fails?

People often assume they have more time to think about what will happen after they die, and consequently, put off making decisions or executing formal documents, like wills and trusts. They may wait until they are very ill to make end-of-life arrangements and decide the easiest and obvious thing to do is leave a simple will that gives everything to their surviving spouse. Under Florida law, a will is a document that disposes of a person’s property after death. The person or entity who actually organizes and manages property distribution is a personal representative who is ideally designated in the deceased’s will. A simple document that merely states one person gets everything provides little detail and leaves the will open to contest from other family members and fights over who should serve as personal representative. Further, if the beneficiary is incapacitated, receiving all assets in an estate at once does not allow for prudent planning for long-term care. Finally, if the beneficiary is unable to inherit the deceased’s property, and there is no else named, the property is disposed according to statute. And, in some cases, that means the property is turned over to the state and sold. While the last scenario rarely happens, it is still a possibility that can be avoided with proactive estate planning. However, it is important to understand the consequences of having no estate plan or one that does not satisfy current legal requirements.

Who Can Inherit?

If a person dies without a will in Florida, the property will be distributed to relatives under state succession laws. Persons eligible to inherit must be related to the deceased through marriage or as a blood relative. The deceased usually has surviving spouses, children, and parents to inherit all property, but the law does allow grandparents, aunts, uncles, and the like to inherit if there are no known closer descendants.

How Much Are They Entitled to Receive?

Surviving spouses are given special preference in inheritance laws, and consequently, they almost always receive a larger share. Some examples of how much a surviving spouse would receive over other descendants are:

  • if the deceased has no living descendants, the spouse gets the entire estate;
  • if the surviving descendents are solely the children of the deceased and the spouse, the spouses inherits everything;
  • if the deceased has children from other relationships, the spouse receives half of the estate, and the children receive the other half divided equally between them; or
  • if the spouse and deceased have surviving children and the spouse has other children from a different relationship, the spouse receives half of the estate, and the deceased’s children divide the other half equally.

Property that Is Not Governed by Succession Laws

While most real and personal property a person owns can be distributed under succession laws, there are some assets that fall outside these laws and pass to designated beneficiaries or co-owners. Examples of property of this type include:

  • life insurance proceeds;
  • funds in an IRA, 401k, or other retirement account;
  • payable-on-death or joint bank accounts; and
  • real property the deceased owned jointly with someone else.

Hire an Estate Planning Lawyer

Estate planning is not something you should leave until the last minute or default to the inheritance laws set by the state. Deciding how your property should be divided is a personal and important decision that will impact the survivors long after you are gone. The Tampa law firm of Bubley & Bubley, P.A. understands the value of an estate amassed over a lifetime and wants to help see it distributed according to your wishes. Contact us to schedule a consultation.

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