DO I NEED A LAST WILL AND TESTAMENT?

 

You might. Or you might not. It depends.  If you don’t have a Last Will and Testament when you die, Florida law will have, in essence, written a Will for you. Meaning, that if you die without a Last Will and Testament, Florida law will decide who takes your estate and how much each person gets – instead of you deciding. Depending on whether you’re legally married or not, have children or not, whether all your children are your spouse’s children or not and whether all your spouse’s children are your children or not, Chapter 732 of the Florida statutes contains very specific lists of who is entitled to receive a share as well as the percentage that each person is entitled to receive (this is called “intestate succession”).

What does this statute mean?  It means that if you are married to a person (but not if you are living with a person and not legally married), and that person dies, then as the surviving spouse you are entitled to everything as long as your spouse does not have surviving children who are not your children.  In addition, if your spouse has a child or children who are not your children (biological or adopted) then you do not get 100% of your spouse’s estate – instead you get 50% whether or not you and your spouse also have children together. However, if all of your spouse’s children are also your children, then you get 100% as long as you don’t have any children that are not your spouse’s children – otherwise you get 50%.  If these scenarios are not what you want, then a Last Will and Testament, or a Revocable Trust (with a pour-over Will), would allow you to make the choice to have your assets distributed in a manner that’s different from what Florida law says.

Perhaps you like the plan for distribution of your estate that Florida law sets forth… or perhaps you don’t like the 50% reduction part if it applies to your situation (although in many cases that’s the distribution some people decide upon anyway when they have children from another relationship). This means that if you’re ok with Florida law’s plan for distribution of your estate, then you may not need a Will – unless you would like to minimize if not avoid the need for your beneficiaries to deal with the Florida Probate Administration process after you die See Blog: How can a Revocable Trust help you. The reason is because in Florida, when a person dies with property titled in that person’s name alone, and the only testamentary document the decedent has is a Last Will and Testament, then the probate process will still be required following death – in other words, a Last Will and Testament alone does not avoid the probate process.

The answer to whether you need a Will, however, may be less clear is if you are in a committed relationship but you are not legally married – or, if one or more of your spouse’s children are not also your children – or, if one or more of your children are not also your spouse’s child(ren) – or, if you have a minor child for whom a guardian may need to be appointed – or, if you have no children (or descendants) or a spouse – or, if you’d like to devise a part of your estate to another relative or a charity or a pet.

Since each of the foregoing scenarios would put your estate into the hands of someone you might not have chosen if you die without a Will or Trust, and since it’s certain that in each case the cost of following the distribution plan set out in the Florida Statutes would be higher than if your directions were stated in your Will (and usually much higher than if your directions had been stated in a properly funded Revocable Trust), then if your situation looks more like the foregoing examples, then your answer to the question “Do I Really Need a Last Will and Testament (or a Trust)?” is:  absolutely.

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