If you pass away without a Will, the Florida intestate statute determines who inherits your assets and requires a full probate proceeding. This means that distribution is determined based on their familial relationship to you and some family members may receive more or less than others. For example, if a married man passes away without a Will and leaves behind a wife and two children, the Florida intestate statute generally gives 50% of the probate estate to his wife and 25% of the probate estate to each child. If the decedent wanted his estate to be divided differently, he must have a valid Will at his death.
Additionally, an intestate probate proceeding generally can be a long and costly endeavor. This can delay the actual distribution of assets to the surviving spouse and family members.
A probate proceeding is the court-supervised process of distributing assets after a person’s death. Probate only deals with those assets that do not automatically pass by operation of law, such as by joint tenancy with right of survivorship or by existing trusts. The idea behind probate is to protect your family members and your creditors in the event of your death. But it also tends to be a costly and time-consuming process.
Having a Will avoids some of these trials and tribulations. A probate proceeding may still be necessary if you have a Will, but it is a more simplified proceeding than if you pass away without a valid Will.
If you have a Will that merely “pours over” your assets to a Revocable Living Trust that already holds the majority of your assets, then probate is even less problematic. A “pour over” Will functions to transfer to the trust any assets you own outside of your revocable living trust at the time of your death. In this case, the assets in a revocable living trust pass outside the probate process in accordance with the trust document; only what must be “poured over” is subject to probate.
Peace of Mind Through Estate Planning
Estate planning allows you to direct the distribution of your assets after your death. But it also allows for those of us who have (or plan to have) minor children to ensure that they are cared for. Parents often think “what happens if both my spouse and I pass away? Who will take care of our children? How will someone take care of them?”
All of these questions can be answered by a Will or a Revocable Trust. You can appoint a guardian to take care of your children and establish a trust to care for their needs until they reach 18 or older. Should you have a family member that has special needs, provisions for their benefit that will not interfere with their state and/or federal benefits can also be addressed in a Will or trust.
By providing for our families and friends through estate planning, we gain control over what happens after we die and provides us with peace of mind.