According to Kiplinger’s Personal Finance, only one-third of Americans have a Last Will and Testament. What does that mean? A Last Will and Testament (not to be confused with a Living Will) is a writing, signed in front of two witnesses and a notary, that states who you want to have your assets when you die, and who you want to administer your estate (i.e., be the personal representative or executor – those two terms are interchangeable). If you die without a Last Will and Testament, you die “intestate” and this means that the state of Florida decides who gets to act as the personal representative and even who receives your assets upon your death.
For instance, in Florida, if you die married to someone, and that someone is not listed on your assets (i.e., they are not on title to your house, or you have bank accounts in just your name or even with another individual), your spouse is entitled to a share of those assets if you die without a Last Will and Testament. If you have a pre-nuptial agreement (or a post-nuptial agreement), and your spouse waives their rights to your assets after you die, then your spouse may not have any rights to your assets. Without a pre or post-nuptial agreement, the state of Florida has laws that spell out who gets what.
If you have a homestead without the surviving spouse on title, the surviving spouse can elect to take a half interest in the homestead (with the other half going to your children) or the surviving spouse will receive a life estate in the property (meaning they can live there for the rest of their lives with the remainder interest going to your children at your death). With regards to other assets that go through probate, if you die without a Last Will and Testament, your spouse (if you have children from a prior relationship) would take half, and the children would receive the other half. Or, the spouse could also consider taking an elective share (which is 30%) and the elective share amount deals with assets that do not go through probate, including assets held in a revocable trust, jointly owned property, pay on death accounts, life insurance and more.
If you do not have a spouse, then the Florida statutes look to whether you have children. If you do, they inherit if you do not have a Last Will and Testament stating otherwise. If you have no children, then the next in line is grandchildren; if no grandchildren, then the statute looks to see if your parents are still alive, brothers and sisters, and so on and so forth down the family tree line. If there is someone along those lines that you absolutely do not want to inherit from you, having a Last Will and Testament will allow you to spell out who you want to disinherit and who you want to have your assets.
Sometimes, a Last Will and Testament may not be needed. It really is on a case-by-case basis. If you have an only child and you want that child to have everything, you could make them the beneficiary of your assets (or put them on title on such assets like bank accounts), and they would automatically receive those assets at your death. However, I do not recommend adding individuals to assets (such as with a homestead) until you have had a chance to speak to an attorney and understand the pros and cons of doing so.
If you have questions and would like guidance about preparing a Last Will & Testament, please contact the law office of Laurie E. Ohall, PA.