BETTEN, MURPHY & WEISS
Brevard's Elder Law Firm
A person who dies with a will is said to have died testate. A person who dies without a will dies intestate. In either case, the person who dies is called the decedent, and the property the person leaves at death is called the his or her estate.
It is always preferable to have a will. A will states your preference as to the disposition of your estate. A will can and should be changed as your circumstances and preferences change. Even if you take measures to avoid probate, you should have a will as a back-up. A will should always be drawn up by a qualified attorney familiar with your financial circumstances, family situation and your wishes for your estate.
When a person dies without a will the law decides how, by whom, and to whom a decedent's estate will be distributed. Persons receiving property are called "beneficiaries." The person in charge of distributing the estate is the "personal representative." Some property may pass automatically or outside the estate, such as joint accounts, accounts that are "in trust for" another person, or property in a trust. However, this property may still be in a taxable estate and thus will be taxed.
Under Florida law of intestacy, if the decedent has no children and leaves a spouse, the spouse takes all. If the decedent leaves a spouse and one child, the spouse receives $60,000 plus one half the balance. After this the distributions between the spouse and children become complex.
If there is no surviving spouse nor children, nor grandchildren living at the time of the death of the decedent, next in line would be the parents of the decedent (if either of them is still living). If there are no living parents, then brothers, sisters, nephews and nieces, aunts and uncles, cousins and finally "next of kin" inherit the estate in that order. Many times this is not the wish of the decedent. That is why having a will is so important.
The personal representative (PR) is the person who will take charge of collecting and distributing the property of the person who dies without a will. The law decides who shall be the PR in an order similar to the order beneficiaries inherit as described above. The PR petitions the court for Letters of Administration. The Letters are authority from the Probate Court to act on behalf of the estate. Banks, brokers and transfer agents can then transfer property from the name of the decedent into the name of the estate. The administrator after paying funeral expenses, debts, and taxes can then distribute the property to the beneficiaries in the shares provided by law.
With a will a person has control over how and to whom his or her property shall be distributed after death. There is one exception, you cannot disinherit a spouse. By law a surviving spouse can elect to receive thirty (30%) percent of the Estate even if he or she was left less under the will or through various testamentary substitutes (joint accounts, trusts, etc.).
In a will, the decedent names an "personal representative (PR)" to collect, administer and distribute the estate. The PR may be a relative, friend or even a trust company or a bank. A PR from out of state must be a relative. The PR selects a lawyer to assist in probating the will.
The attorney on behalf of the PR files a petition with the Probate Court requesting the issuance of Letters of Administration. These letters enable the PR to transfer stock, bank accounts and other property into the name of the estate. The PR first pays funeral expenses, debts and taxes and then distributes in appropriate shares the estate to the beneficiaries named in the will.
The person executing a will (the testator) must decide where the original will be kept. The original must be kept in a safe place which is easily accessible when the testator dies. If the testator does not keep the original, he or she should have a copy clearly marked where the original is kept.
The best advice is to always have a will and to have it drawn by an experienced attorney familiar with your financial situation and your wishes. A change in circumstances such as a marriage, birth of a child, or the death of a spouse will often trigger the need to change your will. No estate is too small for a proper will. If you want your legacy to go where you desire..... you must have a will. The cost of drafting a will is well worth the investment of your time and money.
A Will allows you to exercise control over the disposition of your property. You name the person to make sure your wishes are followed, named a Personal Representative. You indicate whether the Personal Representative serves with or without a bond and whether they are paid a fee. You can establish a Trust in your Will to manage money if any of your beneficiaries are minors or are "special needs". You can designate charities as beneficiaries.
If you die without a will (Intestate Sucession), a probate will be necessary in order to distribute the property in your estate. Intestate Sucession is the Florida Legislature's attempt at writing your Will for you. It might not be what you want.
A Will distributes your assets at the time of your death as you direct. A Will must be probated, which may or may not be expensive. A Trust will distribute your assets at your death and more. If you set up a Trust to distribute your assets you may be able to substantially avoid probate. Setting up a Trust initially is more expensive than setting up a Will, but may avoid probate costs completely or substantially.
A Personal Representative is the individual who will handle your estate when you die. This person can be a family member or friend. The Personal Representative is responsible for collecting (marshalling) assets, paying creditors, distributing the assets and any other duties as set forth in the Will.
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