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Do All Florida Residents Have to Have Florida Wills?

Apr 8, 2022 | Estate Planning Legal Blogs | Elder Law P.A

While many people in Florida create a will, not everyone does. After all, it has been estimated that more than half of all Americans do not have a will. There is no state law demanding that all citizens of Florida need to make a will. But if you want your estate to be passed on to your beneficiaries in the manner that you desire, or if there are young children involved who will need a guardian, having a will is highly recommended. The important thing to remember is that in Florida, all inheritance from people who have died is not taxed. The beneficiaries only receive their share of the estate after all the liens and debts are paid off. Florida will forms are legal documents that can assist in the will process.

Having a Will in Florida

When Florida wills are created, it is important to follow the rules of the state. For your will to be valid, it must be signed in the presence of at least two competent witnesses. However, there may be instances where you personally are not able to sign the will (i.e., you may have had a stroke, injured your hand, or have a physical disability that prevents you from writing your name). In such cases, you can direct another person to sign the will in your presence. The two witnesses, however, have to be present and witness the signature, and then sign the document themselves.

Naming an Executor

When Florida wills are created, a personal representative or executor should be named. A Florida will form can assist with this designation. This individual will handle the distribution of your estate, pay any residual taxes owed, and reimburse the creditors and lien holders. In most cases, the personal representative will have the original will or know where it is safely located. After the death of the decedent, the individual or the executor who possesses the original will must file it with the local court no more than 10 days after the death. From this point on, once the will is verified as original and valid, the following scenarios will come into play.

Administration of the Estate

1. Disposition without administration: In general, this process takes place when the decedent does not have any assets or property and there is no money left to pay off the creditors or lien holders. In such scenarios, the court usually finds that no intervention is possible since there are no assets. However, the person holding the will must still file it with the court.

2. Summary administration: This process is initiated by filing a “petition for summary administration.” Essentially, you state that you want the estate to be distributed to the beneficiaries listed in the will. However, this option is only available if the decedent passed away over two years ago or the probate value of the estate totaled less than $75,000.

3. Formal administration: This process is a time-based resort for the distribution of assets following the decedent’s death. First, the court decides on the validity of the will, and then the named executor identifies all the beneficiaries and totals the estate. In addition, he or she has to locate any creditors and lien holders. Probate will decide how the estate will be distributed. The creditors and lien holders are always paid first, and then the remaining assets are distributed to the beneficiaries.

What If There is No Will in Florida?

When a person dies without a will in Florida, this is referred to as intestate. The estate distribution is then performed legally via the intestate laws. The court will also appoint an executor of the will. This person may or may not be related to the family. There is a hierarchy of kin that the court looks at when distributing the estate via intestate governance. The intestate laws afford all heirs an equal share of the estate. For example, if there are four children who are deemed to be the rightful beneficiaries, then each will get 25 percent of the estate. The court only decides on how the estate should be distributed; the actual distribution is done by the executor or the personal representative.

The Process of Intestate Succession

Here is how Florida’s intestate succession works:

  • If you only have a surviving spouse, the entire estate will pass to him or her.
  • If you have no living spouse, the entire estate is passed on to the surviving children.
  • If you have biological children and your spouse has her own children from another marriage, the estate will be split between your biological children and those of your spouse. For example, if you have two biological children, they will each get 25 percent of your estate and the remaining 50 percent will be split equally with the former children of the spouse.
  • If you have no living spouse or children, next in line to inherit the estate are your surviving parents.
  • If you have no surviving spouse, children, parents, your assets will then pass to your living siblings and/or their children.

Who is Left Out with the Intestacy Laws?

In general, intestate laws also leave out the following:

  • Unmarried partners
  • All stepchildren, unless they have been legally adopted
  • Best friend(s)
  • Foster parents

No matter how much the decedent loved the above or how long he or she knew them, without a will, no estate can be passed on to them if there is no will. Florida intestate laws do not legally consider the above as kin and so they do not receive any part of the estate.

Is It Possible for the State of Florida to Take My Estate?

If you don’t have a will and you have no surviving kin, then eventually the estate will belong to the State of Florida. This is rare but it can happen if there is no will. The simplest way to avoid such a scenario is to make a will.

CONCLUSION

The best way to avoid any problems with Florida wills, a Florida will form, and the distribution of your estate after your death is to make a complete and correct will. Contact an estate lawyer and protect your wealth so that it goes only to your loved ones. Life is unpredictable and tomorrow is not guaranteed to anyone. The earlier you get your will made, the better you will be able to sleep each night knowing that you have taken care of your family. Elder Law, P.A. understands the importance of making a will. The lawyers are very experienced with the State of Florida’s laws as they relate to will, trusts, and other legal matters. You can trust them to handle your will with care and compassion, ensuring your heirs won’t have to struggle with estate questions at the difficult time of your passing. Call them today at 1-561-933-5077 to start planning the details of your will.

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