A will is one of the most universally recognized legal documents, in that nearly every person is familiar with a will’s function – dictating how a person’s belongings are to be distributed after they pass away. However, in spite of wills being so well known, many people still don’t have one, and others have wills that may be legally defective.
There are several reasons why it is important to ensure that you have an updated, valid, and effective will when you pass away. In this blog post, we’ll explore a few of those reasons.
What happens if I don’t have a will in Florida?
When a person dies without a will, the law decides what happens to all of their assets. This process is called intestacy, and under Florida law, the way a person’s assets pass depends on the makeup of their family. Generally speaking, an intestate person’s entire estate goes to their spouse, or to their children if they are not survived by a spouse.
Exceptions to the rule exist, such as if a person is survived by a second spouse and children from a previous marriage. In that case, the spouse takes half of the estate, and the other half goes to their children. Florida’s statutes provide details about how property passes in intestacy for all kinds of factual scenarios.
However, it’s easy to see how dying intestate could turn into a complicated process. While the law provides how an estate is split up, the law does not provide for what goes into each share. Thus, it is very common for intestacy to give rise to disputes between and among family members who may not be able to agree about who should take what items, and how much those items might be worth. When those disputes arise, courts have to step in and resolve conflicts, which takes time and legal fees.
Why Do I Need a Will in Florida?
The overarching reason why you should ensure that you have an updated, valid will is to avoid the intestacy process. As discussed in more detail below, avoiding intestacy is a good idea for multiple reasons, and having a will takes care of all of these concerns.
1) Decide how your belongings are distributed after your death
When a person dies intestate, Florida law determines what happens to their assets. If family members are not able to determine amongst themselves how things get split up, a court will make the decisions for them. In short, the deceased family member has no say in how their assets are divided up.
We spend our entire lives compiling things, saving money, and taking care of our belongings. Some of us do that with the expectation that our descendants will one day inherit our assets, and others of us have other plans, such as donating our assets to charity. Irrespective of your specific plans, having a will allows you to be detailed and precise about how you want your life’s belongings to be taken care of after you pass away. A will can be customized and drawn with precision to ensure that your plans are carried out in exactly the way you want them to be.
In other words, after a person spends their entire life collecting assets, it follows naturally that a person should be able to determine what happens to them. Without a will, you lose that control entirely, and with a will, you retain it.
2) Save your family time and stress
Even in spite of disputes that may arise during the probate process, having a will can save your surviving family members time and stress associated with intestacy. When a court has to determine how a person’s assets are to be divided among family members, the process can take a significant amount of time to play out.
When a person dies with a will, thereby avoiding the intestacy process, probate is essentially limited to ensuring that the will is valid. From there, the estate’s administrator distributes everything according to the document, and the court’s involvement is minimal. Keeping the courts out of your family’s affairs, especially at an emotional time after someone has died, ensures that stress is kept to a minimum, and that time is saved as much as possible.
3) Ensure that children and dependents will be taken care of
If you have minor children or other dependents, such as a disabled adult child or another person for whom you are a guardian, a will is the best way to ensure that care will be provided according to your wishes. Similar to intestacy, Florida law determines how child and dependent custody is dealt with in the event of a parent’s death. If one parent survives, then that parent retains sole custody.
But if a child only has one parent who dies without a will, then any family member can petition the court for custody of the child. If multiple family members do so, the child can be caught in a complicated legal dispute that could be traumatic and damaging. In a will, you can include provisions indicating your wishes for who will take care of your child and other dependents upon your death, thus avoiding that potentially painful process.
4) Avoid legal challenges and lawsuits
As previously mentioned, the intestacy process takes time and money to play out, and because intestacy leaves so many questions up in the air, family disputes can arise very quickly. When a court has to resolve these disputes, each party in the dispute will in turn have to hire a lawyer, incurring legal fees, and it could take months and years for a probate dispute to resolve entirely.
When a person dies with a will, these legal challenges and disputes are largely avoided, as the will itself spells out what will happen to all of that person’s property. While wills themselves can be challenged, as well, disputes regarding wills are much less common than disputes arising from intestacy. Furthermore, a will drafted by an experienced estate planning attorney should be legally sound and resistant to challenges, in that wills can be drafted to address any anticipated disputes between family members.
5) Be strategic about taxes
Lastly, wills also allow you to be strategic about estate taxes, so as to minimize the impact of taxation on the transfer of your estate. Federal taxes and state taxes apply to some degree in almost every estate planning situation. A detailed will, drafted by an attorney, can ensure that you distribute your assets in a manner that lessens the tax burden on your descendants.
How Do I Create a Will In Florida?
The first step to getting a will in Florida is to contact an Experienced Florida Estate Planning attorney who can assist you in drafting a will that takes care of your unique situation.
Wills are not a one-size-fits-all document, and a good will ensures that all of your assets are accounted for, potential disputes are anticipated and avoided, and most importantly, that your family will be taken care of after you pass away. To schedule a consultation, contact our office today!
