What Happens if I Don’t Have a Will?
Lawyers often lament that so many seniors are resistant to discussing their estate plans. No one wants to talk about dying; it makes us face our mortality and ultimate fears like: Will I suffer? Will I be cared for? Will I be stuck in a nursing home? Will I be remembered? Will my children be okay without me? These are some of our most primal considerations in old age. It is no wonder that many seniors avoid tough conversations about death, especially with adult children and grandchildren.
To make this worse, many people have grave misconceptions about what a will can and cannot do. This is usually worst in areas that have a large population of seniors, because misinformation quickly spreads from one person to another. In fact, a lot of older adults have been led to believe wills are only for the rich. This is entirely untrue. So to answer a common question posed by many clients, this post explains just what happens if a person chooses not to make a will.
What Does a Florida Will Do?
In Florida, a will allows three basic things to happen when you die. First, it allows you to say who gets your property – money, home, and personal items. These are called bequests. Second, a will allows you to name the person who will handle all your affairs and make sure your wishes are honored. This is called your executor, also called a personal representative. Third, a will often results in a less expensive and simpler probate matter, should such a court proceeding be necessary. Here, we discuss these more closely.
People sometimes think that a will avoids probate. This is not entirely true. In Florida, there are certain assets that are exempt, and provided you do not have more than the statutory limit of non-exempt property, you might be exempt from filing a probate estate. The rules are fairly complex, so it is best to consult a local elder law attorney to open a probate estate if there is a very small amount of property. In these cases, you just need a small estate affidavit. If you have too much to qualify but less than $75,000, you may qualify for a simplified process called summary administration. An experienced attorney can help set up your estate plan to minimize the chance of needing a probate estate, but this should not be the only concern.
Think for a moment about that adult son or daughter who has always been irresponsible and unwilling to help with anything. Now imagine that son or daughter going through your bank accounts, personal property and family heirlooms, deciding which of your relatives, including other children, gets those assets. This may not sound like the best result While not everyone has these concerns, most people find it very relieving to choose who will handle these matters when they are gone. A will is the best way to do this and to avoid disputes among heirs.
- Simplify Probate
If your heirs do have to open a formal probate estate, having a will allows your executor to serve without paying for costly bonds, reduces the time for opening the estate, and therefore can also reduce attorney fees and the overall time for resolving any issues.
What Happens Without a Will?
When a Floridian dies without a will, it is said that the State of Florida has created one for you. This is because there are rules that govern how property is distributed without a will. These are called the laws of intestacy. If you are married at the time of death and have children together, your spouse is entitled to the first $60,000 plus one-half of the remaining assets before your children get anything. The rules are different if you have children from a different person. If there is no spouse, the state has a “pecking order” of sorts for determining who gets your estate. If there are no close relatives, this may end up being distant cousins or great-nieces and nephews. Finally, if there are no relatives, your estate will escheat back to the state. Therefore, instead of leaving the money to a close friend or charity, it simply goes to the state.
Even if you do not consider yourself wealthy, you should definitely consider a quick visit to a local elder law attorney here in The Villages at the Millhorn Elder Law Planning Group who can put together a comprehensive estate plan to protect your estate and intentions. Sometimes this may mean changing how property is owned, which may include restructuring bank accounts and creating a straightforward will that ensures your wishes are upheld.