• 03
  • January
    2012

A will is the cornerstone of any estate plan. A will is the best way to control what happens to your assets after you die - it names the beneficiaries of your estate, specifies who gets what assets and appoints a "personal representative" to manage your affairs.

However, not just any document will do. To be valid, a will must meet the strict requirements of Florida estate planning law. To avoid the risk of having your will ruled invalid after you die, it is best to have your will drafted by a Florida wills and trusts attorney.

If your will is ruled invalid after your death - or if you never drafted a will in the first place - the Florida courts will distribute your estate for you. Dying without a valid will is called dying "intestate."

Floridians who die intestate will have their assets distributed in the following order of priority:

  • If the deceased person left behind a surviving spouse but no surviving descendents (e.g., children, grandchildren, great-grandchildren), the surviving spouse will receive the entire estate.
  • If the deceased person left behind both a surviving spouse and surviving descendents, but all of the descendents are also descendents of the surviving spouse (for example, they are children of both the deceased person and the spouse), then the surviving spouse will still receive the entire estate.
  • However, if the surviving spouse has one or more unique descendents (for example, the spouse had children from a previous marriage), then the surviving spouse keeps half the estate and the deceased person's surviving descendents share the remaining half
  • If the deceased person was not married at the time of death, then the surviving descendents will share in the estate. The estate generally passes to the deceased person's children first. If a child has died, the grandchildren will take that child's share.
  • If the deceased person had no spouse or descendents, the estate will pass to the deceased person's parents. If the parents are dead, the estate will pass to the deceased person's siblings.
  • If none of these parties are alive, the court will try to identify more remote relatives. If the court cannot find any heirs, the estate will pass to the State of Florida.

Dying without a valid will can have unwanted consequences - for example, your children or grandchildren might not receive any part of your estate even though you want them to.

Nobody wants to think about dying, but it is important to plan for that eventuality. You don't want to take the risk of your estate being divided by the state.

Source: The Florida Bar Association, "Consumer Pamphlet: Probate in Florida"