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Written by Thomas Upchurch
We all want to ensure that our families and other loved ones are protected when we’re no longer with them. A will is generally the simplest and best-known way to direct what happens to property after death. In this guide, we’ll explain how a will works, what is required to make a will enforceable, and how a will may be contested. We’ll also overview some of the other ways property can be transferred on death, and what happens if you die without a will.
Unfortunately, a surprising number of Americans don’t take advantage of the legal options designed to protect their loved ones. In 2017, a study conducted by Caring.com revealed that just 42% of U.S. adults surveyed had a will. That’s bad news because if a Florida resident dies without a will, state law determines how his or her property is distributed. The outcome isn’t always what the deceased person might have wanted, and often comes as a surprise to the family.
Before we talk about how you can dictate what happens to your property after death, let’s look at what happens when a Floridian dies intestate.
When a Florida resident dies without a will, his or her property is distributed according to the state’s law of intestate succession.
Of course, the law of intestate succession is intended to ensure that the people closest to the deceased are protected and provided for. The problem is that every family structure is different. Some people who might normally be included in a will but receive nothing under the law of intestate succession include long-time unmarried partners and stepchildren. Even natural children born out of wedlock may be excluded from intestate inheritance from the father, depending on the steps taken during his lifetime to establish the relationship.
Many people assume that if they are married and die without a will, the entire estate will pass to the surviving spouse. While that’s true in some circumstances, it isn’t always the case. The surviving spouse will inherit the whole estate if both spouses were childless, and also if they had children together and neither had any other children.
But, the division is more complicated if either spouse has descendants that are not also descendants of the other. The surviving spouse will receive just one-half of the deceased’s estate if either:
In plain English, if all descendants are shared, the children of the deceased don’t inherit anything directly. But, if one or both of them have separate descendants, then the estate is split in half. The half that doesn’t go to the surviving spouse is split among the descendants, including those shared by the couple.
If the deceased was single, divorced, or widowed at the time of his or her death, the state of Florida looks first for descendants. If there are direct descendants, the whole of the estate goes to them.
When there is no surviving spouse and there are also no descendants, Florida law has prioritized other potential heirs:
Florida makes every effort to ensure that assets stay in the family, so even if none of the above are found, the estate goes to the kin of the last deceased spouse, as if that spouse had survived the decedent and then died intestate.
This complicated hierarchy may not yield the result the deceased would have wished for. Worse, if all of the paths listed above fail, the next step is for the state to take possession of the property and liquidate it for the benefit of the State School Fund. Even a person with no legal kin likely has someone—a long-time partner, a best friend, a favorite charity, a business partner, a child born out of wedlock who doesn’t meet the criteria for intestate succession, a mentee—to whom they would likely prefer to direct their assets.
To ensure that your wishes are carried out and those you wish to provide for after your death are protected, it’s essential to take steps to make those wishes known in a legally binding format.
The two main vehicles for directing disposition of property after death are a will and a living trust. This creates some confusion because a third type of document you may have heard of, known as a living will, serves an entirely different purpose. A living will is a type of advance healthcare directive and, while important, it plays no role in the distribution of property.
Here’s a high-level overview of how wills and living trusts work.
A will is a legal document in which the person creating the will, known as the testator, makes his or her wishes for disposition of property known. This may be as simple as leaving the entire estate to a surviving spouse with provision for another beneficiary if the spouse dies first, or as detailed as listing out specific property to be distributed to each of several loved ones.
Property distributed through a will may include:
The testator may direct the personal representative to liquidate property and distribute the proceeds in shares to the beneficiaries, or may make direct bequests of specific property to specific people or organizations.
In the same document, the testator names a personal representative (sometimes called an “executor”) to manage the estate. In Florida, parents of minor children can also name a guardian for their children in a will.
A will doesn’t have any legal effect while the testator is alive, and can be revoked or modified at any time as long as proper procedures are followed. After the testator’s death, the will is filed with the court. This process is known as “submitting the will to probate.” The personal representative carries out the directives in the will and performs certain other duties, including making reports to the probate court.
Except in certain cases involving very small estates, Florida law requires that the personal representative work with a probate lawyer to ensure that the estate is administered properly. Depending on the size and complexity of the estate, any obligations of the estate, the type of property to be distributed and other factors, the probate process may take anywhere from several months to two years or more.
A living trust is an alternative way to pass property to beneficiaries after death. A living trust is somewhat more complicated to create, and requires some work on the part of the grantor—the person creating the trust to pass property. During the grantor’s lifetime, he or she plays all roles relative to the trust: grantor, trustee, and beneficiary. That means a grantor can do whatever she wants with trust property during her lifetime.
The terms of the trust will include a successor trustee and one or more successor beneficiaries. When the grantor passes away, the successor trustee steps in to manage the trust for the benefit of the successor beneficiaries—the family members and others the grantor chose to benefit. Depending on the terms of the trust, the trust assets may be distributed to the beneficiaries outright after the grantor’s death, or the trust may continue to operate, making periodic payments to or on behalf of the beneficiaries.
This flexibility is one advantage of a living trust. When you leave property to someone in a will, the property transfers without limitation. Through a living trust, the grantor can arrange for money to be paid out at certain landmarks, or for trust assets to be used for specific purposes, such as educational expenses.
However, for a living trust to remain an effective vehicle for passing down property, the grantor must remember to title every new piece of property to the trust, list the trust as owner on all bank accounts, and generally ensure that all assets are property of the trust and not his personal property. This means ongoing maintenance for the grantor. Failure to include all property that isn’t passing through other means could mean having to open an intestate estate to deal with the stray assets. Therefore, many people who rely on living trusts find it beneficial to also prepare a simple will to dictate the disposition of any assets not held by the trust.
Drafting a Florida last will and testament requires that you follow certain formalities. Though many people believe that they can simply write out their wishes, a document that doesn’t meet certain technical requirements will typically be deemed invalid.
For a Florida will to be valid:
Some states recognize holographic (handwritten) wills even if some of the formalities are not observed. Florida does not. A handwritten will may be valid in Florida, but only if it is properly executed and witnessed. Florida also does not recognize video or audio taped wills or wills delivered verbally in the presence of witnesses.
A will may be accompanied by an affidavit of authenticity, signed by the testator and the two witnesses in front of a notary. This affidavit is not required, but simplifies the process of probating a will.
While the main purpose of a will is to pass property to beneficiaries, the document itself contains other information and instruction, including:
In most cases, leaving property to loved ones is a bit more complicated than simply saying, “I bequeath all of my property to my wife and children.” In fact, that type of language doesn’t convey meaningful direction as to who should receive what and in what percentages, nor what should happen if one or more of the beneficiaries dies before the testator.
A properly-drafted will includes not only specific shares, but also provides direction as to whether property should be distributed to later generations “per stirpes” or “per capita”. While those terms are meaningless to the average person, they can make a significant difference in the end result.
Imagine, for example, that John’s will leaves his full estate to his children, and then to his grandchildren. His two children, Jack and Mary, both die before him. Jack has four children and Mary has one.
If the property passes “per capita,” it’s divided equally among the grandchildren, and each receives 20%. But, if it’s divided “per stirpes,” it is first divided between the deceased children and then each’s share is divided equally among his or her children. In that scenario, Mary’s sole child would receive 50% and Jack’s four children would split the other 50%, receiving just 12.5% each.
There are also limitations on the transfer of certain property under certain circumstances. For instance, a married testator cannot leave out his or her spouse unless the spouse has executed a waiver. If the will does not provide for the spouse, or does not adequately provide for the spouse, the spouse has the option to “elect against the will.” If the spouse chooses an elective share, a complicated statutory formula is applied to determine what the spouse is entitled to.
Making a will in Florida without a clear understanding of these and other complexities can have unintended consequences. That’s one reason that it is best to have an experienced Florida estate lawyer prepare your last will and testament, rather than writing a will on your own or using a form.
While most people will find that they need a will or a living trust or both to properly manage distribution of their assets after death, certain types of property may pass outside this process. Some examples include:
The way property is transferred after death may have an impact on tax liability, and may affect the amount of time it takes for the beneficiary to receive property. When you meet with an estate planning attorney, you should include assets that are jointly held or already have a listed beneficiary in your list of property and discuss the pros and cons of each option for passing those assets.
The process can be complicated for someone without extensive estate management experience. But, if you’ve been appointed personal representative of a loved one’s estate, don’t worry—you don’t have to figure it out alone. Florida law requires most personal representatives to be represented by an attorney, whose fees are paid out of the estate. There’s an exception for some very small estates. Of course, you’re still free to choose to work with an attorney on an estate that’s exempt from the requirement, to simplify the process and make sure all of your responsibilities are carried out correctly.
An interested party, such as a beneficiary or natural heir, may contest the validity of a will on one or more of these grounds:
Some types of will contests are more complicated than others. In particular, establishing lack of capacity and undue influence can be very difficult when the person who can best speak to his intentions and the events leading up to execution of the will is deceased.
Will contests can also be time-consuming and expensive, depleting the estate assets. Anyone considering challenging a will should consult with an experienced estate planning attorney. Time is limited, so don’t delay in scheduling a consultation with a Florida will contest attorney.
A last will and testament is just one part of an effective estate plan. Those considering making wills in Florida should start with a consultation with an experienced estate planning attorney. The attorney can advise you on whether a will or living trust or combination of the two makes the most sense for you, and:
At Upchurch Law, we have many years of experience helping Florida families with estate planning, probate, and will contests. To learn more about how we can put our experience to work for you, call 386-320-6169 or fill out the contact form on this page.
Need more information about Wills and Trusts in Florida? See all our case studies and explanations: Florida Wills & Trusts