Inheritance Protection

What Happens to Your Assets When You Die in Florida? Our Boca Raton Inheritance Attorney Explains

The disposition of our estates (i.e., what happens to our possessions when we die), is an uncomfortable topic for many because it forces us to confront the inevitability of our own death. However, estate planning is nonetheless an essential consideration for everyone, as we all want to ensure that we properly care for the loved ones we leave behind. When a person dies, what happens to their estate depends upon whether that person had a will. Below, we will examine what happens to those who die with wills and what happens to those who die without wills. In either situation, a Boca Raton inheritance attorney may be necessary in order to best protect your wishes. 

If You Have a Will, Make Sure It’s Valid in Florida

The guiding principle of probate law in Florida is that the terms of a decedent’s will represent the decedent’s wishes and should thus be followed. If you die with a will in Florida, your estate will be disposed of according to the terms of your will to the greatest extent possible. Upon your death, your will will be admitted to probate, all outstanding claims and creditors will be paid, and the rest of your estate will be transferred to your beneficiaries.

The requirements for a will in Florida are fairly straightforward. There are five requirements a will must meet in order to be valid in Florida:

  1. The testator must be at least 18 years old at the time of the will’s execution
  2. The testator must possess testamentary capacity at the time of the will’s execution. Testamentary capacity includes the ability of the testator to know (1) the nature and extent of his or her property, (2) the natural objects of his or her property, and (3) the disposition the will is making.
  3. The testator must sign the will or direct another person under his direction and in his presence
  4. Two witnesses must be present when the testator signs the will, and the two witnesses must also sign the will in the presence of the testator and each other
  5. The will must be in writing

Even with the best-drafted wills, however, disputes can still arise. Death puts a significant emotional strain on everyone in the family, which can quickly turn to resentment and greed. If you die with a will, it is possible that one or more of your beneficiaries will challenge its validity. Some of the most common grounds for will challenges include allegations that the testator lacked capacity, that the will is a product of fraud, forgery, or undue influence, or that the will in question has been superseded by a later will. While the presence of a will generally lends more certainty to the disposition of your estate than the absence of one, it can also form the basis of extended probate litigation.

If You Don’t Have a Will, Speak to a Boca Raton Inheritance Attorney

Not everyone dies with a will. If you die without a will in Florida, your estate will pass through the laws of intestate succession, which are a general set of rules that determine how a deceased individual’s estate will be disposed of without the guidance of a will. Under Florida’s intestacy laws, the disposition of your estate will depend to a large extent on your family makeup at the time you died — whether you were married, whether you had children, whether your parents are living, etc.

The general rules of intestate succession in Florida are as follows:

  • If you die with children, but no spouse, your children inherit your entire estate
  • If you die with a spouse but no children, your spouse inherits your entire estate
  • If you die with a spouse and children only from you and your spouse, and your spouse has no other children, your spouse inherits your entire estate
  • If you die with a spouse and children only from you and your spouse, but your spouse has children from another relationship, your spouse inherits half of your estate and your children inherit half
  • If you die with a spouse and children from someone other than your spouse, your spouse inherits half of your estate and your children inherit half of your estate
  • If you die with no spouse or children, but have parents, your parents inherit your entire estate
  • If you die with no spouse, no children, and no parents, but have siblings, your siblings or their descendants inherit your estate
  • If you die with no spouse, no children, no parents, and no siblings, but have grandparents, your grandparents or their descendants inherit your estate

As you can see, Florida’s intestacy laws favor the decedent’s spouse and children over other heirs, only passing property to more distant relatives, such as parents, siblings, aunts, uncles, and grandparents, if the decedent did not have a spouse or children. If the decedent dies with no one eligible to inherit his or her property, the property is said to “escheat,” meaning that the property reverts to the state.

Laws of intestate succession are based on assumptions of what the decedent would have wanted had he or she died with a will. For example, the state assumes that a person who dies with a spouse and children would want to leave his entire estate to his spouse to be used for the family’s maintenance. It is then assumed that whatever is leftover from the decedent’s estate will become part of the spouse’s estate and will eventually pass to the children upon the spouse’s death. However, these are merely assumptions and do not necessarily reflect the exact wishes of the decedent.

Protect Your Assets by Contacting a Boca Raton Inheritance Attorney

Having a will is the best way to ensure that your estate is disposed of according to your wishes after you die, and it is never too early to start planning for the inevitable. To get started, please contact a Boca Raton inheritance attorney at the Ellis Law Group by contacting us online or calling 561-910-7500.

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