The Consequences of Living and Dying Without a Will and Other Legal Documents in Florida

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By Gary M. Landau, Esq.

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Consequences of Living and Dying Without Will and Other Legal Documents in Florida | Call (954) 979-6566

An elderly couple living in Coral Springs, Florida, spent a lifetime accumulating valuable assets, building their dream home, and raising a beautiful family. But like many people, they neglected a critical aspect of securing their family’s financial future: estate planning. Their failure to create a will and other legal documents led to unfortunate consequences for their children and grandchildren upon their brain damage and ultimate death from a major car accident.

Their children fought over who should be the personal representative for the estate. And one of their sons whom the couple hadn’t been in touch with in decades after he stole from them waltzed back into the family to claim his share of the estate, even though the remaining siblings knew their parents would not have wanted that.

This story illustrates an uncomfortable reality: every one of us will die, and none of us can predict when that will happen. Had both of these people created a will and other legal documents with the help of a knowledgeable and experienced estate planning attorney, their children and other loved ones would have known exactly what each intended as their final wishes. Instead, while mourning the loss of their parents, they had to deal with unexpected issues including having the state determine where their assets would go based on Florida intestate law.

Too many families face a similar predicament. According to Caring.com’s 2023 survey, two out of three Americans have not created any estate planning documents. More than 40% say they won’t bother until their life is in danger and one out of four say nothing would motivate them to create a will.

As a seasoned South Florida estate planning attorney with more than 25 years of serving clients, these sobering statistics are unsurprising. But I have seen firsthand how the lack of proper estate planning documents can be problematic for surviving loved ones. This blog explains the estate planning process and offers an estate planning checklist to help you understand why it’s essential to protect your family and uphold your final wishes. Continue reading to learn more, then contact us at (954) 979-6566 to schedule a free consultation.

What Are the Essential Components of a Florida Estate Plan?

The estate planning process involves more than managing your finances and your assets during your lifetime. Estate planning must be tailored to the needs and desires of the individual. Your estate planning attorney should take the time to ask questions, listen to your answers, and develop an estate plan that helps you accomplish your goals.

Some aspects of estate planning involve actions outside of what your lawyer provides for you. For example, naming a beneficiary on bank-account and brokerage-account forms allow that money to go directly to the beneficiaries without passing through the probate process.

Wills

A will is the foundational document of a comprehensive estate plan. It allows you to take charge of what happens to your assets after your death by designating specific beneficiaries to inherit your property, money, and cherished possessions. A will is also the place where you appoint the personal representative who will ensure your assets are distributed properly after you are gone. Married couples must make two separate wills, one for each spouse.

To be legally valid a will must comply with Florida law, which is why it’s important to work with a knowledgeable estate planning attorney.

Everyone should have a will, but some people absolutely must have one. One group is parents of minor children, since in a will you can appoint the legal guardian who should care for them if both of their parents pass away.

Ensuring accuracy in drafting and executing a Florida will is vital. Once a person has passed away and their will is filed, it’s obviously impossible for them to make any changes. Sadly, we have witnessed numerous cases in which inadequately drafted wills have been invalidated by probate courts. This scenario results in assets being distributed based on legal formulas by the state instead of following the decedent’s wishes.

Living Will

A living will outlines for your doctor the care you wish to receive at the end of your life when a return to health is hopeless and you cannot convey your preferences, perhaps because you’re in a coma.

A living will clarifies your choices concerning aggressive care, such as whether you do or don’t want to stay on life support or be resuscitated when you have no prognosis for recovery. An estate planning attorney often creates a will and living will at the same time.

Healthcare Power of Attorney

A healthcare power of attorney is another document often created alongside a will. It designates the person or people you want to make crucial medical decisions about your healthcare if you become incapacitated, such as whether you should undergo surgery or have any other treatments.

Without this document, a hospital or physician will usually defer to your next of kin, which could be an elderly parent or adult child. When you draft a healthcare power of attorney, you are able to name any person you feel will best fill that role.

Durable Power of Attorney

Drafting and signing a durable power of attorney is a serious undertaking that should involve careful decision making. This document allows an individual who you name to make significant financial decisions on your behalf—including withdrawing money from your bank account and even selling your home.

An experienced estate planning attorney can help you walk through the process of whether to create a durable power of attorney and whom you should name as your power of attorney.

Years ago it was possible to create a durable power of attorney that took effect only under certain conditions, but now all these documents take effect as soon as they are signed and executed.

In some cases, a client who does not feel ready to put someone else in charge of their financial affairs but believes they may need to soon might choose to create a durable power of attorney but hide the document until it becomes necessary to cede financial control to another person.

Revocable Living Trust

Depending on individual circumstances, some people choose to create a revocable living trust. This legal entity actually becomes the owner of all your assets. The person creating the living trust has access to these assets during their lifetime and can change or cancel the living trust at any time (this is why it’s called revocable).

Revocable living trusts offer some advantages, including bypassing the time and costs of needing to probate the estate after your death. When the trustee passes away, a successor trustee designated in the document immediately takes charge of the assets.

A big problem with these trusts, however, is that they are not filed with the courts. Our law office has seen many people named successor trustee unable to find the original trust document, which puts ownership of all the assets in a legal limbo.

Moreover, every asset the person owns must be transferred into the trust. This time-consuming process involves creating new deeds for real estate and contacting banks, investment firms, insurance companies, and other asset holders to change ownership of each account to the trust. It also means ensuring that every major purchase after the trust is created is done in the name of the trust and not the individual.

People who create a revocable living trust should also have a will, known as pour-over will, for any assets that exist outside of the trust when they die.

Other Trusts

Numerous types of trusts exist for various purposes, such as for wealth management for very wealthy people or to safeguard assets for someone with a severe disability. A trust is a separate legal entity that becomes the rightful owner of any assets placed into the trust. Unlike a revocable living trust, these other types of trusts are often difficult to dissolve.

Trusts involve:

A grantor: The person who creates the trust, makes all the necessary decisions, and sets the framework for its operation.

A trustee: Acting as the overseer of the trust, the trustee is responsible for managing and safeguarding the assets held within it. They ensure the trust operates in alignment with the grantor’s wishes.

A beneficiary: This individual reaps the benefits of the trust, receiving proceeds from the trust’s assets as determined by the grantor and overseen by the trustee.

Before creating a trust, the grantor must clearly define the trust’s purpose and carefully consider any specific conditions they wish to impose on the distribution of assets.

Your Estate Planning Checklist

Prepare for your meeting with an estate planning attorney by doing the following:

Review Your Asset Inventory so you have a sense for how much money and property you might leave to beneficiaries.
Decide on Beneficiaries for your will or trust (and also for life insurance policies, retirement accounts, bank and investment accounts, and other assets not handled by a probate attorney).
Gather Personal Information for every individual you plan to include in your estate planning documents.
Decide on Advance Directives, including your healthcare surrogate to make medical decisions on your behalf and your preferences for medical treatment and end of life care.
Evaluate Long-Term Care Plans and Insurance to assess your long-term care strategy and ensure that you are adequately prepared for future healthcare needs.
Think About Digital Assets like social media accounts, email accounts, online banking, digital wallets, and any other online platforms where you have an account. It’s smart to list all accounts and passwords in your locked safe, telling close family members where they can find this after your death.
Take Your Emotional Needs into Account, Too. The Law Office of Gary M. Landau, working with hospice experts, has created a free, 4-page document for you to list your emotional wishes about the end of your life, such as who you want around you, what music you might desire, and what kind of memorial service you envision. Download the free form at the bottom of our home page. This is not a legal document but rounds out your estate planning needs.

The LAW OFFICE OF GARY M. LANDAU, P.A.: Your Estate Attorney Serving Coral Springs, Parkland, and South Florida

When it comes to estate planning attorneys, knowledge and experience are important aspects. With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2024. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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