Your Last Will and Testament

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.