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Do I Need a Will?

Posted by Scott Schenking | Jan 29, 2021 | 0 Comments

We All Need a Plan.

Many clients considering an estate plan question whether they need a will or plan at all. A will along with the planning documents for incapacity are necessary to protect your loved ones from the agony of settling your estate through Florida's intestate process. Your assets may not pass to your spouse as you planned. For unmarried clients, your friends and family will l have no idea who should settle your estate and how. Your estate will incur additional costs as your loved ones are left to work this out through the probate courts.

If there is no will in Florida, the State's intestate statutes will guide how the estate is settled and this may not be what you desire. Except to argue that the state's statutory formula was incorrectly applied, there are no grounds to appeal from the state's statutory intestate distribution formula. Should you die intestate leaving real estate in more than one state, every state where the deceased's real property is located will have its own intestate probate.

In every state where there is probate, a bond has to be posted. The administrator will receive a “reasonable” fee determined by the amount of work done and the gross value of the estate. The probate lawyer will also receive a “reasonable” fee. There will be the usual filing fees, publication and mailing costs, and perhaps appraisal fees.

The bottom line with intestate succession is that you have no control, the costs can be extreme, the delay could be extreme, the process is entirely public, minor children and minor grandchildren of deceased children could inherit property that a surviving spouse would normally inherit, and strangers are likely to be in control.

If any part of a Florida decedent's estate is not effectively disposed by a will, the intestate share will be distributed in the following order and manner:

1. Surviving Spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. The amount a surviving spouse is entitled to, however, varies as follows:

  • a. If there is no surviving lineal descendant of the decedent, the surviving spouse gets the whole intestate estate.

  • b. If there are surviving lineal descendants of the decedent, and they are also all lineal descendants of the surviving spouse, the surviving spouse is entitled to the first $60,000 of the intestate estate, plus one-half of the intestate estate's remaining balance. Property used to satisfy the $60,000 must be valued at the fair market value on the date of distribution.

  • c. If there are surviving lineal descendants of the surviving spouse, the surviving spouse gets one-half of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

  • 1. Decedent's lineal descendants.

  • 2. Decedent's parent or parents equally.

  • 3. Decedent's brother and sisters and the descendants of any deceased siblings.

  • 4. Decedent's grandparents or their children if both paternal or maternal grandparents are deceased. Half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent of to the children of the paternal grandparents (i.e., decedent's aunts and uncles) if both are deceased. The other half passes to the maternal relatives in the same manner. If there is no surviving kin on either hte paternal or maternal side, the entire estate passes to the relatives available on the surviving side in the same manner as described above.

  • 5. As a next to last resort, the entire intestate estate goes to the kin of the decedent's last deceased spouse as if the deceased spouse had survived decedent and then died intestate entitled to the estate (which means going through all of the above again).

3. State of Florida. If there is no taker under any of the above provisions, the intestate estate passes to the state of Florida for use by the state's school fund.

A basic estate plan for you and your spouse cost far less than you may realize. Request your Confidential Estate Planning Workbook to get started today. A Certified Estate Planner® will work with you to complete your plan.

About the Author

Scott Schenking

Scott is approved as a Certified Estate Planner by the National Institute for Certified Estate Planners. Scott received his Juris Doctor from the nationally ranked George Mason University Antonin Scalia School of Law in Arlington, Virginia.  Before beginning his own pra...


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