Wills and Intestacy in Florida: Do You Need a Will?

December 14, 2012

Many prospective clients come to Florida estate planning attorneys with a basic question: "Do I really need a will?" The general answer is yes if a person desires to control the disposition of certain property and differentiate how it should be distributed among family members and other heirs.

Like other states, Florida has an intestacy statute that governs the distribution of a person's property and other assets via the probate process after death. Wills and trusts are the basic tools that a person can employ to express a different intent from the uniform treatment of the Florida Probate Code.

Basic provisions if a person dies without a will in Florida

Under Florida's intestacy statute, the following basic principles apply if a decedent has not left behind a will or other estate planning documents:
- The surviving spouse of a person who dies with no living descendants (children, grandchildren, great-grandchildren, etc.) receives the entirety of the probate estate. The same is true if the decedent's descendants are also the only descendants of the surviving spouse.
- If the surviving spouse has other living descendants who were not those of the decedent, he or she receives half of the estate and the other half goes to the decedent's descendants
- The descendants of a person who is not married at the time of death receive the entire estate
- If the decedent was not married and had no living descendants, the estate passes first to his or her parents, if they are still alive, and then to siblings
- If no spouse, descendants, parents or siblings of the decedent are alive at the time of death, the estate goes to more remote relatives

Divisions among descendants occur at the generational level. For instance, if a person dies leaving behind only one child, but another child had previously passed away after having children, the surviving child would receive one half of the estate and the children of the deceased child (grandchildren of the decedent) would share in the other half.

Exceptions exist for certain types of property, particularly a homestead property. This and other complexities clearly indicate why working with a Florida probate attorney can help family members avoid confusion if a father, mother or parent dies without a will.

Creating a will to customize your wishes and control your legacy

The basic requirements for executing a will in Florida are straightforward. A will must be in writing, must be signed at the end by the person who creates it (known as the "testator"), the testator's name must be subscribed at the end of the will by another person in the presence and under the direction of the testator, and two witnesses must attest to the proper execution of the will in the presence of the testator and each other. An amendment to a will, known as a "codicil," must follow the same formalities.

As simple as that may sound, a close review of the intended language by a Florida estate planning lawyer can help a client understand potential pitfalls such as the likelihood of a will contest. A wills and trusts attorney can also explain related issues such as executing a self-proving will or following proper procedures to revoke an existing will.

Article provided by Bryant Law Firm
Visit us at www.miamiprobatefirm.com