Help! My Child is Turning 18: Important Legal Docs for Young Adults

Young adult
Turning 18 and becoming a young adult is one of the most significant milestones in our lives, at least legally. This coming of age moment opens new opportunities to vote, enlist in the military, and even serve on a jury. But like Uncle Ben said, “With great power comes great responsibility.” 

Gone are the days where you were able to make all legal, financial, and health care decisions for your child as their guardian. Now your young adult child has the sole power and discretion to make these decisions or delegate them to whomever they deem appropriate. It’s okay; we just wept a little with you. 

As attorneys (and moms!), when we think of eighteenth birthdays, we think of all the necessary legal documentation your child needs. We think of the automatic right to privacy and autonomy now bestowed upon your new 18-year-old. We think of the pediatrician who now looks to your child for answers rather than you. Or the school or college that will not allow you access to your child’s records without your child’s consent. Let that sink in. By virtue of a single birthday, this young adult is now viewed as holding the answers to all the questions asked. If your now adult child wants or needs your help, you cannot help without proper documents in place: Power of Attorney and Health Care Surrogate, or Guardianship/Guardian Advocacy.

Before you continue reading, if your child is developmentally disabled, please read the blog we wrote for special needs children turning 18. There are some pretty big differences between the legal requirements. Now, without further ado, Power of Attorney!

Power of Attorney and Health Care Surrogate

The Power of Attorney allows your child to give decision-making authority to you, a grandparent, or a trusted advisor over any business, legal, and financial transactions. It is important to note that your child will continue to make all these decisions themself, and if their decision is opposite to what you would personally decide, your child’s decision reigns supreme. However, if your child is unable or does not want to make the decision, you can act on their behalf. 

For example, your child gets the opportunity to study abroad. With the power of attorney, you can manage their monthly bills or request travel documents they left sitting on the desk back home. You could purchase real estate, make investments, or renew their vehicle registration. The possibilities are numerous; but more importantly, the Power of Attorney provides security should something tragic occur and your child become temporarily or permanently incapacitated. Rather than rushing to the courts to obtain guardianship to make decisions for your child, you can immediately set in and continue making their decisions with no lapse in time. The last thing you want to do is have your child’s credit destroyed while they are healing or recovering. 

In addition to a Power of Attorney, your child will need a Health Care Surrogate and HIPPA Release which is designed to allow others to make health care decisions if your child is incapacitated with injury or grave illness and allows that person access to privileged health information. Should your child suddenly be injured or ill to the extent they cannot consent to health care treatment, the health care provider will go to the next of kin (who they can find) to make decisions. A Health Care Surrogate designates who your child wants to be the next in line to make decisions and in what order. This can be particularly important, albeit uncomfortable if your child’s parents are divorced, separated, or have a difficult time making co-parenting decisions. It’s not something anyone likes to think about, but it happens. With a HIPPA Release, the named surrogate could be an informed decision-maker who may share details about the family medical history. 

Power of Attorney and Guardian Advocate do not always cross state lines. Making sure you have what you need to protect your child can be tricky if you’re not an expert. At McCart and Tesmer, we deal heavily in Family Law as well as Guardianship. If you have any questions about Power of Attorney, Guardian Advocate, or any other documents you’ve heard can help your adult child, please give us a call at (813) 498-2757 to schedule your legal consultation today. Our law firm is well versed in all types of family law, and if you need advice on legal documents for developmentally disabled adult children turning 18, please refer to this blog for tips and tricks necessary for you and your child.

Help! My Child with Developmental Disabilities is Turning 18: Essential Legal Docs for Young Adults

Developmental Disabilities

As a parent of a child with developmental disabilities, there is a foundational understanding we have of that eighteenth birthday being a very scary one.

For 17 years, you lived in a world where you make all the decisions for your child, and your child may not be ready or able to make independent decisions now. Horror stories run rampant in parent circles that gather around for their developmentally disabled children. Too many of these horror stories are about how once their child turns 18 they lose all decision-making authority. Parents are no longer privileged to health information or are unable to enroll their children in day programs, or group housing. 

It can be a terrible transition from solely responsible to uninvolved. At McCart & Tesmer, we understand those feelings, and our practice helps parents plan and prepare for that next chapter of parenting adult children with developmental disabilities. If your child lacks the ability to know, understand, and appreciate a particular legal document, your child can not consent to signing it. So, if your child is developmentally disabled, it’s likely they are not a candidate for a Power of Attorney or Health Care Surrogate. The document would not be valid. Instead, your child may be a candidate for Guardianship or Guardian Advocacy. Make sure you come to experts and avoid making the wrong judgment call. 

Guardianship

Guardianship is the formal legal process for removing or delegating individual rights from one person and giving them to another, named the Guardian by law. Because of the nature of many developmental disabilities, a Guardian will usually ask a court to relinquish decision-making authority from the developmentally disabled person and give them to the Guardian, usually a family member or loved one. 


This is different from a POA or a Health Care Surrogate, which does include the other party and protects their decision-making ability unless they are incapacitated or chose not to be involved in certain choices. Suppose the disabled adult is determined to be incapacitated by the court. In that case, the Guardian would make business, legal, financial, social, residential, medical, and educational decisions for the developmentally disabled person. 

Guardian Advocacy

Unlike Guardianship, Guardian Advocacy is designed for families with a developmentally disabled child over eighteen years of age who was diagnosed with their disability before turning eighteen. Guardian Advocacy is only available to individuals with an intellectual disability, cerebral palsy, autism, Down syndrome, Phelan-McDermid syndrome, Spina Bifida, or Prader-Willi syndrome, according to Florida Statute 393.063. The condition must be severe enough that the court declares this person does not have and likely will not have the ability to make decisions about their person, property, or estate.

A letter from the child’s doctors outlining the conditions and prognosis is sufficient evidence for  Guardianship Advocacy. Many parents are thrilled to know the option of Guardian Advocacy is available without having their child labeled “incapacitated”. The ability to have some or total decision-making authority without labeling their child incapacitated is one reason many parents and families are choosing to relocate to Florida. We have noticed an influx of parents taking advantage of Florida Guardian Advocacy laws because Florida is one of only a few states which currently has this summary guardianship option available. It’s honestly very progressive of us, and something that we hope will become available to more states in the future. 

We have years of experience with the needs of families with developmental disabled loved ones. Please visit our website for other great resources for Special Needs Children if you’re interested in learning more. Our law firm at McCart and Tesmer is well versed in all types of family law, and if you don’t need advice on special needs legal documents, we have this blog for non-special needs adult children. 

Heard of a Special Needs Trust? Read this before planning your estate!

Special Needs Trust
Life comes at you fast, and before it ends, it is best to have your affairs in order. Dark, we know! But important nonetheless. In the event of your incapacitation or death, an estate plan anticipates and predetermines how your assets — like your home, bank accounts, life insurance, car, and more — disperse to your Successor Trustee and/or beneficiaries. Whether it’s the unthinkable or the inevitable, you should do everything in your power to prepare your estate and what you leave behind for your loved ones. We have already talked about why you need an estate plan. And for families with a special needs child or adult, a Special Needs Trust eastate plan is critical. At McCart and Tesmer, we have a wealth of experience in estate planning and can offer extra guidance for families with special needs children.

So, what makes traditional estate planning so different from estate planning with a child that has special needs? Pretty much everything. Special needs children and adults often have governmental benefits like SSI or Medicare. Not everybody knows that these benefits could be put at risk if the special needs child received a traditional inheritance. More on that later. If your estate plan is not created by someone who has experience specifically with special needs, you run the risk of them becoming ineligible for these government benefits. There are many options to choose from to avoid this, and at McCart & Tesmer, we recommend that you create a Special Needs Trust. Let’s break down what that is, why it is necessary, and what options fall under Special Needs Trust. 

What is a Special Needs Trust?

First off, what’s a traditional trust? A trust is created by a person and their lawyer to transfer parts or all of their assets to their trustee(s). It can protect whatever you choose to leave the trustees from creditors, taxation and probate. Trusts are often used for people who are underaged or mentally impaired in a way that could impact their finances. Once a beneficiary is deemed competent they can possess the trust without supervision.  

A Special Needs Trust is a type of trust designed to help continue the care of a disabled person once a person normally entrusted with that care passes or becomes incapacitated. Not only can it offer the person with disabilities supplemental income, but it can set up their medical care needs as well. Make sure that there are people who know where your legal documents are before you pass or become incapacitated, otherwise we did all the hard work of planning without the rewards. 

Extra provisions that make a Special Needs Trust different include selecting your child’s guardian or conservator beyond the age of 18, if needed. There should be a Trustee appointed to handle money for your special needs beneficiary. It is good practice to have a shortlist of people who could step in as conservator or guardian if your first choice also becomes incapacitated or passes. The Trustee can provide the beneficiary money for a multitude of everyday costs, but the Trustee must consider the beneficiary’s disbursements on a case-by-case basis. The reasons for dispersal are fairly flexible. It could be for their pet dog or a haircut — whatever they need. However, if a Trustee mismanages dispersals, by not documenting them properly or by giving the beneficiary more than the limit set for allowable earnings, they can put the beneficiary’s benefits at risk. 

Why do I need a Special Needs Trust?

Depending on the severity of the person’s disability, they truly may not be able to take care of themselves. They will need someone to make medical choices, financial choices and day-to-day choices for them. If you chose to cut out your special needs child and trust your able-bodied child to “do the right thing”, there is always a chance that child would fail to honor your request. 

In the state of Florida, if a disabled person receiving Medicaid has countable assets that exceed the earning limit they can lose their eligibility. Medical insurance is not a safety net for disabled people, it is a lifeline. Putting this at risk directly puts your special needs child at risk. Luckily, assets in a Special Needs Trust are not included in this calculation. 

Not to mention, government assistance is not guaranteed. The programs your child relies upon could be defunded or altogether eliminated. If there is not something in place in the event of any of these situations, your child is left vulnerable. However, if you have set up a Special Needs Trust your child will have something to fall back on. And that’s where we come in!

What are my options? 

First-Party Supplemental Needs TrustThis is a discretionary trust that is funded with the assets of a supplemental needs beneficiary. Oftentimes the disabled individual’s funds are used for their own benefit but are placed in the trust to pay for future expenses without interfering with their needs-based government services. 

Third-Party Supplemental Needs Trust- This discretionary trust provides stability for people who cannot live independently or earn their own income. The main difference is that a third-party SNT is funded by a family member or guardian for the benefit of a disabled person. 

Third-party trusts have several benefits including no limitations on the number of assets in the trust.

Special Needs Pooled Trust These trusts are run by nonprofit organizations that will administer supplemental income to the beneficiary. Pooled trusts apply fees, offer different services and contracts in different capacities. 

Finding the right Special Needs Trust for you and your special needs child requires a legal expert who specializes in estate planning. At Mccart & Tesmer, we know that an estate plan can save your family a lot of pain, time, and stress. We have seen time and time again what happens when plans are not in place following the death of a loved one, and trust us — it is not pretty. Let the professionals at McCart & Tesmer do what we do best and get your plans in order.

Special Needs Children and Divorce: Intentional Co-Parenting is Key

special-needs-co-parenting

Divorce is hard. Co-parenting is tough. Add in special needs for your child and it is almost impossible to hold it all together for the child. Divorced co-parenting with a special needs child requires frequent communication from both parents. The conflict level and circumstances of the divorce can make co-parenting straightforward or strenuous. The way you choose to co-parent will impact every child differently. Their special needs, individual temperament, and the child’s age are additional factors to be considered. Divorced parents who are co-parenting with a special needs kid is a subject that just isn’t talked about enough. Since we focus on Family Law  at McCart & Tesmer we decided to change that.

Special needs is an umbrella term that can refer to physical or cognitive disabilities,  autism, ADHD, and so much more. Whatever the case, when it comes to co-parenting your special needs child, it is crucial to consider the nature and gravity of their needs. There is no one-size-fits-all special needs plan, but there are things that all parents with special needs kids need to consider. 

  • Being Flexible for the Child’s Fluctuating Needs
    When a child has special needs, there are extra considerations. Things like medications, emotional irregularities, physical distress or comfort, Individual Education Plans, equipment that can vary in mobility are not always static. These things will fluctuate and change and must always be at the top of your mind. Pro-Tip — Remember that some battles are not worth fighting if your co-parent is not on board with certain needs-related decisions. As they say, “Pick your battles.” Is it about “being right” or the child’s best interests?
  • Create a Decision-Making Structure
    Medical, emotional, educational, and financial needs will often vary. A go-to decision-making structure can relieve some of the stress involved in the ever-changing day-to-day. We suggest prioritizing the decision based on urgency. Consider where your and your co-parent’s strengths, weaknesses, and expertise lie in order to divide options by category or split everything 50/50. Finding what works best for you and your co-parent will significantly reduce all decision-making stress. For example, Mom handles scheduling doctor’s appointments, and Dad takes on in-home care communication.
  • Stick to Routines
    No matter the custody agreement or what conflicts may arise: routine is critical. If possible, schedule medical or therapeutic appointments that do not change month to month. Stick to whatever dietary routine has been agreed upon and established. Changing something simple like a bedtime ritual can seriously disturb a special needs child’s sense of stability. Divorce is already a layer of instability for your child’s world, and it’s essential to do everything you can for their comfort. Maintaining consistent routines is a huge part of that.
  • Take Stock of Available Resources
    Support groups, therapists, caretakers, non-profits, and government supplements to income can all be possible resources. There are groups for sensory integration disorder, autism, ADHD, Down Syndrome, and more in the Tampa area. Programs range from art to equestrian activities. There are non-profits like the American Association of Intellectual and Developmental Disabilities(AAIDD) that offer educational workshops and journals. Since the start of the pandemic, many more groups offer virtual components as well. Do some research to find what meets your needs.
  • Preparing Them Together for the Future
    Disabled adults often face many things non-disabled adults would never have to consider. Disabled adults risk losing needs-based government aid like Medicaid or Supplemental Security Income if they get married. Depending on the state, possessing more than $2,000 in the bank can disqualify a disabled person from receiving government aid. Implementing a Supplemental Special Needs Trust can help. If the child’s independence is not possible, when will conservatorship or guardianship be necessary? To ensure the child’s success growing into an adult, devise a plan with your co-parent to educate your child on their legal protections and available resources before turning eighteen.
  • Take Care of Yourself
    Just because this is last on the list doesn’t mean it’s not essential. Parents of kids with special needs should still be able to have a life! Caretaking is incredibly stressful, so it is easy to get burned out. When you add divorce and everyday responsibilities, it can be incredibly tough to make time for self-care. Taking care of yourself can model important behaviors like setting and understanding boundaries, self-care, and independence, to name a few.

Parents take extra steps to ensure proper development psychologically, physically, and emotionally for their special needs kids. In previous posts, we’ve written about parenting planning tools, and all of these can be starting points for special needs kids as well. Please contact us at McCart & Tesmer, P.A. for additional guidance and support on parental planning.

7 Back-to-School Resources For The Upcoming Florida School Year

The upcoming school year is quickly approaching which means it is time for parents and children to start getting prepared! With schools allowing students to return to campus, access to back-to-school resources is essential for a successful school year. 

Based in Tampa Bay, Florida, the team at  McCart and Tesmer decided to gather a few back-to-school resources for the families in our area to ease the stress of returning to classrooms this year.

  1. Tax-Free Week – By far, one of the most helpful back-to-school resources for parents is Florida’s Tax-Free Week. From Saturday, July 31 to Monday, August 9, back-to-school shoppers can take advantage of tax-free school supplies. Tax-Free Items include most school supplies selling for $15 or less, accessories, clothing, footwear selling for $60 or less, and more! Click here to learn more about Florida’s tax-free week at.
  2. School Supplies – Going back to school requires buying all of the supplies necessary for the new school year. School supplies can become expensive as lists grow longer each year. Luckily, Hillsborough County Public Schools is putting on their “14th Annual Back to School Fair” at WestShore Plaza mall in Tampa. The back-to-school fair is free to attend and will offer free backpacks to the first 500 kids in line! The event will include giveaways, performances, activities, and over 60 different vendors. Click here to learn more about this valuable back-to-school resource.
  3. Back-to-School Health Clinics – COVID-19 is still a looming issue among children returning to school. To protect the health of students, faculty, and staff, The Back to School Coalition of Hillsborough County has organized “Back-2-School Health Clinics”. The “Back-2-School Health Clinics” are available to students in kindergarten through high school. The clinics provide physicals, eye exams, dental screenings, immunizations, and shot record updates. The COVID-19 vaccine will also be available to children 12 to 18; however, space is limited. Click here to register!
  4. School Meals – Having a healthy meal at lunch is essential for school children. Hillsborough County Student Nutrition Services offers free breakfast for all students and low prices for school lunch meals. Many children do not have access to fresh and healthy meals. If you are in a household receiving benefits, your child may be eligible to receive free or reduced-price meals. Click here for more information about this back-to-school resource.
  5. After-School Programs – Keeping children motivated and active is paramount during their developmental years. After-school programs are a great way to provide physical, social, academic, and emotional growth for children. Hillsborough County Public Schools provides a before and after school program called HOST. HOST is an affordable option for parents who work full-time or are looking for physical and academic support for their children. To register your child, visit https://www.hillsboroughschools.org/Page/3768. For a list of other exceptional after-school programs click here.
  6. Homework Help –  Children need a little homework help sometimes, math in particular. Hillsborough County Public Schools offers a free service to all students called the Math Homework Hotline. Students can call in and ask specific questions about any of their math problems. On certain Thursdays, the Math Homework Hotline conducts a live show broadcasting math questions and topics. Topics include everything from Linear Functions to Ratios and Rates. Click here to utilize this back-to-school resource.
  7. Mental Health – With the stress and uncertainty of the pandemic, it is crucial now more than ever for students of all ages to take care of their mental health. After a far from typical year, students returning to school may be struggling a bit with their mental health. Mental health problems can interfere with children’s learning, relationships, and emotional development. The Florida Department of Education provides resources and contacts for children struggling with their mental health. Parents also have access to speak with a member of Student Services, a school social worker, school nurse, school psychologist, or school counselor. Click here to learn more!

After a hectic year (and summer!), returning to the classroom can be a little less stressful with these 7 Back-to-School Resources for the 2021-2022 school year. Make sure you take advantage of all of the back-to-school resources available for the best success. The lawyers at McCart and Tesmer want to wish you and your families an incredible academic year filled with in-person learning, laughs, and lots of fun! Give us a call for all of your family law needs.

6 Effective Proactive Co-Parenting Tools for Back To School

The summer goes by so fast, and before you know it, it’s time for the kids to head back to school. This means it’s time to think about things like back-to-school shopping, choosing extracurricular activities, figuring out transportation, considering holidays to come, to name a few. For families where divorce is involved, proactive co-parenting is a must. At McCart and Tesmer, we have a great deal of experience in Family Law and have seen some clever tactics to provide a much smoother school year for both parents and the children. 

Here are the things we suggest for the most successful back-to-school proactive co-parenting.

  1. Review Your Parenting Agreement.  Assuming you already have a parenting agreement in place, reviewing it before the school year begins allows parents to look ahead and prepare for things like upcoming travel and school holidays. A fresh set of eyes on your agreement can also reveal any missing contacts for childcare or emergencies. This review is also a great time to make any adjustments to the Agreement if necessary (with the help of your lawyer(s)) to avoid scheduling conflicts in the coming school year. It is also a great time to decide on transportation for extracurricular activities and the pickup and drop-off duties to come. If you don’t yet have a Parenting Plan in place, click here to get a free template.
  2. Let Technology Help! Consider using an app designed to help divorced parents communicate better. OurFamilyWizard is one of our favorites, and it was created by a divorced couple who understood there was a need for a tool to help co-parent as smoothly as possible. The application allows each parent to have their account, and then they can add in other users such as therapists, lawyers, and extended family. Helpful apps for divorced parents usually feature a shared calendar. This comes in handy for both parents to see what is upcoming and communicate directly through the app to avoid confusion.
  3. Create One Email Per Child. This one might sound strange, but it works! Proactively create a specific email for your child to give to the school for all communication. Both parents have access to this email address for full transparency. A single email streamlines communication between parents and the school regarding essential things like announcements, report cards, parent-teacher conferences, events, etc. 
  4. Discuss School Supplies.  In Florida, things directly relating to a child’s education (book, uniforms, pencils, etc.) should be covered by child support. Agreeing about needs, budget, and shopping for and paying for school supplies BEFORE school starts can help avoid unnecessary conflict in an already stressful time. For the sake of record-keeping, it is recommended that the parent paying for the supplies buys the specific supplies rather than sending money to the other parent. 
  5. When Possible, Attend Parent-Teacher Conferences Together. Being a united front as co-parents is especially important for the education of the child or children. Attending meetings like this together makes it easier for the teachers by showing that both parents are committed to supporting the child’s education. Of course, there are cases where having parent-teacher conferences together is not possible. In those cases, it is essential to utilize most if not all of the tips here to ensure communication is evident between the teacher and parents.
  6. When Conflicts Arise, And They Will, Put The Child’s Interest First. Every divorce has its share of conflict, or both parties wouldn’t be divorced. That said, it is crucial for both parents to always come back to the common goal: your child’s health and happiness. The decisions you make should have the child’s interest at the forefront, and any conflict between the parents should be secondary. Be aware of how you speak to the other parent in front of the child; disagreements can wait until they aren’t around. Remember, you are shaping our future through your children, so be sure to give them the best chance by working WITH your co-parent.

Hopefully, this list of tips and tricks will help you as you enter another school year. Even though the marriage didn’t work out, it is possible to provide an incredible school experience for your kiddo. The lawyers at McCart and Tesmer can help you sort out many of the complexities of your divorce, from custody to parenting plans and everything in between. They can help you find ways to ease the discomfort of the divorce by providing the knowledge and tools necessary for the co-parenting journey. Proactive co-parenting not only works, but it can make all the difference in the world by avoiding the unnecessary and planning for the future together. 

Your Last Will and Testament: Don’t Die Without One!

Have you ever thought about how you will die? As morbid as that sounds, we all know that it is not if but when. It could be sudden like a car accident or maybe something more long-term like cancer. Listen, we get it, death is a topic that is uncomfortable to talk about. But taking the time to put things in place now, while you are alive, will set up all of the survivors to be taken care of in the wake of your death. No matter how young or healthy you are, you need a Last Will and Testament in place.

“If you fail to plan, then you are planning to fail” – Ben Franklin

The best possible scenario for everyone involved is that you have an estate planning document, like a Last Will and Testament, in place when you pass away. Planning ahead for the inevitable not only legally protects your loved ones but also guarantees that you leave your property to who you want. Having everything in writing before you die ensures that there are no questions about your wishes regarding your estate which, in turn, relieves pressure from your family during an already stressful time. With the help of a lawyer (preferably one who focuses their practice in probate), having a Last Will and Testament prepared is fairly simple and can save your survivors time and money after your passing. 

There are a few considerations to your Last Will and Testament to keep in mind. Last Will and Testaments are still subject to probate; conversely, a properly funded trust will avoid probate altogether. Additionally, a Last Will and Testament allows for you to disinherit a child; however, you cannot disinherit your spouse without a validly executed pre-nuptial or post-nuptial agreement and your spouses’ consent. Florida protects legal spouses with the elective share which means, at minimum, spouses are entitled to 50% of the probate estate or 30% of everything (probate and non-probate assets) you owned at the time of your death. 

Clearly there are many beneficial impacts of having a Last Will and Testament.  But what happens if you never get around to completing it? Every state has intestacy laws which provide the distribution of your property when you die without a Last Will and Testament.  These laws describe who inherits and what percentage each person receives. 

The following are examples to illustrate the complexities of what happens if, for instance, a (1) Florida man (2) dies without a Last Will and Testament (intestate) and (3) leaves all of his property in his individual name:

  • What if he was married? – The surviving spouse gets 100% of his estate. That said, if he has children from another relationship (which is about 80% of second marriages), the surviving spouse gets 50% and the other 50% goes to his children. 
  • What if he and his partner were not married? – This begs a few additional questions in order to be answered. 
    • Are there surviving children? 
      • Yes – Then equally to his descendants.  Nothing to his partner 
      • No – 
        • Then equally to the man’s mother and father or to the survivor of them. 
        • If both parents are deceased, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters. 
      • Unfortunately this has the effect of disinheriting a non-married partner, making it especially important to have a Last Will and Testament to ensure a partner inherits from another partner’s estate. 
  • What if there are half-siblings?When property descends to collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half-blood, those of the half-blood shall inherit only half as much as those of the whole blood; but if all are of the half-blood they shall have whole parts.” Sound a bit like Harry Potter? We thought so too. Here’s a translation — Half siblings only get half as much as whole siblings, unless all of the siblings are half-siblings and then they all get the same amount. 
  • What if there are no living brothers, sisters, or descendants of brothers or sisters? The estate shall be equally divided with 50% going to the maternal kindred and 50% going to the paternal kindred as follows:
    • To the grandfather and grandmother equally or to the survivor of them. 
    •  If there are no living grandparents, then  to aunts and uncles (or their children who are decedent’s cousins) 
    • If there is either no paternal kindred or no maternal kindred, the entire estate shall go to the kindred that survives in the order stated above. 
  • Ok, but what if there is NO surviving kindred? If there is no surviving family then the estate will go to the kindred(family) of the last deceased spouse of the descendent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.  (Before you panic, this does not mean a previous spouse the man divorced, just deceased.)
  • What if there is STILL NO ONE?  The man’s estate will escheat  (be given) to the State of Florida 
    • The state takes your property and sells it. The profits will then be deposited in the State School Fund. At any time, within 10 years, someone claiming to be entitled to the proceeds of the property can reopen the administration of the estate and assert entitlement.  
    • If no claim is made in 10 years, the state’s right to the proceeds shall be absolute.

As you can see, it can get a little sticky trying to figure out who gets what. Without a Last Will and Testament, there are so many unanswered questions that can sometimes lead to rifts in families upon the division of the estate. It is easy to see that having a Last Will and Testament signed before you pass makes an already hard time a little bit easier for all of those who survive you. The professionals at McCart & Tesmer have a focused practice in Estate Planning and Probate so if you are ready to begin your Last Will and Testament, schedule your appointment with us.