What Happens if You Pass Away Without a Will?

What Happens if You Pass Away Without a Will?

In the unfortunate event that you pass away without a will, the distribution of your property may become subject to the laws of intestacy. This means that a local probate court may have to step in and decide how to distribute your assets. Without written documentation reflecting your wishes, the probate process can only follow state intestacy laws. Let’s look at how the laws of intestacy impact your loved ones.

What Happens Without a Will

If You’re Married

If you’re married and die without a will, your spouse is entitled to a share of your estate. This can be seen as advantageous for many couples as it ensures that the surviving spouse is provided for in the event of one partner’s death. If you’re married, but have children with someone other than your current spouse, then your estate will be split between your current spouse and your children.

If You’re Single

If you’re single and without kids, it’s essential to have a will to ensure your estate is distributed according to your wishes. The court’s distribution may align differently from what you want. For example, if you have a significant other not named as a beneficiary, the courts likely will not acknowledge them. Additionally, any assets you own, such as a car or a condo, may be used to pay off any outstanding debt you have.

If You Have Children

Having a will is an important step for parents to take to ensure their children are provided for after they pass away. Without a will, the distribution of assets can become complicated, especially if blended families, grandchildren, adopted children, or foster children are involved. Each state has its own intestacy laws determining how assets are distributed if someone dies without a will. Generally, when parents die without a will and have children, the children will receive an intestate share of the assets. However, the percentage of this share can vary depending on the state.

For parents with blended families or additional family members like grandchildren, adopted children, or foster children, determining the order of succession becomes even more complex. Each state has different rules about who inherits from an estate when additional family members are involved. Parents in these situations need to consult with an attorney specializing in estate planning to ensure their wishes are carried out and their children are protected.

How Dying Without a Will Affects Your Loved Ones

One of the most critical implications of dying without a will is the burden it places on your loved ones financially. Without clear instructions on distributing your assets, the court must decide who gets what. This often requires hiring lawyers and other legal professionals, which can be quite expensive. This can deplete the estate’s value and takes precious time away from those left behind, trying to navigate their loss and move forward with their lives.

On the emotional side, dying without a will or estate planning documents can create tension and disagreements among family members. When important decisions regarding guardianship for minor children or caretakers for pets are left up to the court system or siblings’ discussions, it can cause unnecessary stress during a time of grieving. Check out our Estate Planning Checklist and avoid unnecessary stress.

What Happens to Your Things When You Die Without a Will?

When you die without a will, the distribution of your personal property becomes significantly more complicated. As we have explained, the probate court will ultimately decide who receives your assets based on the intestate succession laws of your state. Instead of controlling who gets what, these laws outline a predetermined order of succession. Your surviving spouse will be prioritized along with any children that you do not share with your surviving spouse, followed by your children. If you have no children, your parents, siblings, and extended family members may be next in line to inherit. 

Contact an estate planning attorney at The Law Offices of Amy B. VanFossen to ensure your inheritance wishes are fulfilled. Our expert team of probate lawyers will walk you through the steps to prepare and file your will.

FAQs About Wills

What Is Probate?

Probate is the legal process that occurs after someone dies to oversee the distribution of their assets. It is important to note that whether or not you have a will, your estate may still go through probate court. If you do have a will, the process typically begins with the authentication of your will and the formal appointment of your personal representative or executor. This individual is responsible for carrying out your wishes as outlined in the will, such as gathering your assets, paying any valid creditors, and distributing your property and assets to beneficiaries.

What Does Intestate Mean?

Dying intestate refers to an individual passing away without leaving behind a will. A will is a legal document that outlines the deceased person’s wishes concerning the distribution of their property and assets after death. When someone dies intestate, they have not specified how their estate should be divided among their beneficiaries. Read more about Florida intestate laws here.

How Do You Write a Will?

Writing a will can be done differently depending on the complexity of your estate and your specific wishes. Hiring a lawyer is a wise option if you have a complicated financial situation or specific wishes that must be addressed. The lawyer will guide you through the process by asking relevant questions and using their expertise to draft a last will and testament form for you to sign, ensuring that all legal requirements are met and your desires are accurately represented in your will.

 Learn more here:


Estate Planning for Unmarried Couples

Estate Planning for Unmarried Couples

Unmarried Florida Couples Need Estate Plans

Estate planning is important for everyone but especially so, in the absence of children or a legal spouse, the most common natural heirs when someone passes. For single people, unmarried couples, or couples without children, the absence of a plan or beneficiary designations can lead to unintended consequences, the probate process, and protracted litigation. 

A famous case is the estate of the musician Prince, who died without a will. The lack of a basic estate plan in Florida can result in the loss of financial power and financial decision-making for your unmarried partner or intended beneficiary along with denied or delayed inheritance of important financial assets such as life insurance, investment accounts, bank accounts, real estate, retirement accounts, etc.

Individuals who utilize estate planning legal documents determine the manner in which assets are distributed and account for contingencies. For example, for married people, when a husband dies, assets generally go to his wife, but if she dies without children, the assets could go to her extended family. For single people or unmarried people, one’s extended family is also often the default beneficiary. Additionally, if minor children are involved, estate plans help to determine who cares for them if their parents pass away, whether they were married or not.

Estate planning documents are tools to help plan for the passing of assets or managing incapacitation and medical decisions needed due to injury or illness. Thinking about things ahead of time saves loved ones from additional stress around medical care and healthcare decisions and prevents the dissipation of estate assets through estate taxes, legal fees, and court costs.

At the core of any estate planning tool is a will and durable power of attorney. Choosing the person to designate will demand consideration of both character and temperament. With married individuals, the surviving spouse is typically the default rule; however, it is imperative, you put this in writing. Ithe absence of marriage, long-term unmarried couples may be without recourse if they do not make an estate plan. In the case of incapacitation, the healthcare surrogate will allow someone chosen in advance to make medical treatment decisions instead of a spouse or sibling who may not be preferred for any number of reasons. Additionally, durable powers of attorney generally terminate upon death, so a will or trust must be in place to fully protect everyone involved after the person passes.

If an individual wishes to help loved ones during life and after death, consulting a qualified estate planning attorney may help them understand their options. Our experienced lawyers can assist in planning for all possible contingencies and aspects of estate planning. Contact us today!

This article was originally published in June 2021 but has been updated for accuracy and freshness.

Understanding Probate Litigation

Understanding Probate Litigation

Disputes over a deceased person’s will or estate are something many people only hear about in a sensationalized way via a headline or Hollywood. However, probate litigation is a very real legal proceeding that can happen to anyone’s estate. As you consider how to set up your estate planning documents and communicate your wishes, understanding probate litigation in Florida is just one way we are there for our clients.

What is Probate Litigation?

For most persons, a probate court will utilize probate process law to identify a deceased person’s assets, pay any outstanding debts, and distribute the estate to the beneficiaries as designated. However, occasionally, an entity may challenge the existing will, estate documents, how assets are distributed, or succession rules. This type of legal process is categorized as probate litigation.

Types of Estate Disputes

Losing a loved one is hard enough without the challenges that can come with probate and especially probate litigation. However, if there is a lack of trust between family members, communication issues, or questions about documentation, a dispute is more likely on one of the following grounds:

  1. Undue influence or manipulation that pressured the decedent to draft or revise their will for someone’s personal benefit
  2. Fraud by which someone misled the decedent to sign an unfair will
  3. Signing of a will by the decedent when they were not of sound mental capacity
  4. Disagreement over the validity or the court’s interpretation of a will
  5. Legal right to inheritance who was left off of a will (i.e. spouse electing for their elective share)
  6. Disputing creditors’ claims to estate assets

How Are Disputes Over an Estate Resolved?

In the event that an estate dispute has taken place and probate litigation is in process, it is typically addressed and eventually resolved through some or all of the following:

  • Negotiations: Private, attorney-led discussions designed to represent each client’s best interest with the goal of attaining an amicable solution for both parties.
  • Mediation: If negotiations are ineffective, a structured mediation process with a neutral third party may help the family reach a mutually agreed upon resolution.
  • Settlement: This is the agreed-upon resolution by both parties from which they agree to move forward.
  • Hearing or Trial: If the parties cannot agree after negotiations, the probate litigation may move forward to a hearing or trial. This time and cost-intensive process that involves the presentation of documents, evidence, and possibly even witnesses depending on the intensity.
  • Arbitration: Similar to mediation in that a neutral third party is involved, however, both parties preemptively agree to accept the arbitrator’s decision.

Many Probate Disputes Can Be Avoided

It is clear that probate litigation can be a draining process for your emotions, your time, and your pocketbook. Thankfully, many probate disputes can be avoided through clear communication with your family and expert legal advice to help you draw up sound legal documents that will clearly state your wishes for your estate and beneficiaries. To discuss your will, trust, or estate documentation needs, contact our experienced attorneys in Florida at The Law Office of Amy B. Van Fossen, P.A

What is Probate Court?

What is Probate Court?

Probate is a word you hear often when it comes to estate planning, wills, trusts, etc., but you may not be fully aware of what it means. If you wonder about how probate matters work in Florida and what probate court is, read on for important information from our experienced attorneys below.

What Is Probate?

Probate refers to the legal process when a chosen personal representative assists in the gathering of assets, managing unpaid debts, and the distribution of assets to proper beneficiaries on behalf of a deceased person. This can be a complicated process that takes many months, sometimes over a year.

The probate court is the arm of the judicial system that oversees this process, helping to ensure that wills and trusts are followed as the deceased intended. They enforce the payment of the aforementioned outstanding debts and asset distribution and are the “stamp of approval” for all actions taken by the executor. Additionally, should there be any question or contesting of the will or trust, or if no will or trust exists, the probate court rules in that matter.

What Goes Through Probate?

In Florida, we have what is known as the “Florida Probate Code.” This provides certain protections for the decedent’s family, particularly for a surviving spouse and any minor children. The two terms associated with this code are “exempt property” and “family allowance” with the primary goal being to provide immediate assets to the beneficiaries for their needs rather than having to wait for a creditor claims period to expire.

  • Exempt Property: This protection keeps designated estate property at death from going to creditors so that beneficiaries can use (or keep using) them. This may include appliances and furniture in the household as well as two vehicles. It also includes any Section 529 tuition money and death benefits for members of the school system.
  • Family Allowance: Because the administrative process around the probate court can be lengthy, this money comes out of the estate and is given immediately to the survivors for support during that time.

Additionally, if you elect to engage in a more thorough estate plan, you may be able to protect other assets from probate including retirement accounts, property in a trust, and joint bank accounts or joint personal property. For more on what may be exempt from probate in Florida, click here.

The Probate Court Process

Probate proceedings begin when a deceased person’s executor or family member petitions for probate with (or without) a will and a copy of the death certificate. During the initial steps, the executor is formally appointed and given Letters of Administration (or Letters of Testamentary) which gives them the authority to pay debts and distribute or sell assets, among other tasks. The final steps will establish that the estate is properly settled and close out the estate.

Some amount of involvement with the probate process is involved in many estates; however, you can significantly reduce the complication, length, and cost of probate by planning ahead. To discuss your estate planning and probate needs, contact our experienced attorneys today!

What Assets Are Exempt from Probate in Florida?

What Assets Are Exempt from Probate in Florida?

Losing a loved one is a difficult experience and yet, in the midst of that challenge, many face legal and procedural issues related to the deceased person’s estate. One of the most challenging of these issues is navigating the probate process. Therefore, in order to make probate proceedings as smooth as possible and retain maximum assets to distribute to beneficiaries it is important to answer the question, “What assets are exempt from probate in Florida?”

What is Probate?

Before we identify assets that are exempt from probate in Florida, it is important to identify what probate is. When someone passes away, a court-supervised process begins to validate and authenticate the decedent’s will and then work with the deceased person’s personal representative to gather assets, pay creditors, and distribute the remaining estate to the beneficiaries. Thankfully, for the purposes of our discussion today, there are certain assets exempt from this probate process, which protects them for the beneficiaries.

What Assets May Be Exempt From Probate in Florida?

Florida’s probate process, which is outlined in the “Florida Probate Code”, has some protections in place for the decedent’s family. These protections are specifically in place for a surviving spouse and any children and are known as “exempt property” and “family allowance.” The overarching goal of these protections is to provide assets to beneficiaries immediately for their relief and support instead of needing to wait for the creditor claims period to pass before they can access them.

    • Exempt Property: This property cannot be transferred to creditors and can be given to the beneficiaries much more quickly than that which is subject to the probate process. This type of property includes household furniture and appliances in the decedent’s home up to $20,000 in value as well as two personal motor vehicles. Additional financial exemptions may include any Section 529 tuition monies as well as death benefits for teachers and school administrators.
    • Family Allowance: This money comes out of the estate upon time of death for the purpose of supporting the survivor’s needs during the administrative process.

Additional Options for Exempting Assets from Probate in Florida

In addition to the more typical exemptions listed above, Florida also has some legal tools in place that can help you form a strategy to protect other assets from probate. This more thorough estate planning may include retirement accounts, property that is in a trust, and bank accounts or real property under joint ownership. Florida also includes provisions for “payable-on-death-accounts,” where the decedent named a recipient to receive the funds upon the account holder’s death.

Our Experienced Probate Attorneys Can Help

While losing a loved one can be difficult, the additional legal and procedural challenges around the loss can be eased if you are familiar with and have planned for a smooth and optimized probate process. In order to best protect your assets for your beneficiaries, contact one of our knowledgeable probate attorneys to discuss your specific, valuable, and important situation today.

What is the Difference Between a Simple Will and a Pour-Over Will?

What is the Difference Between a Simple Will and a Pour-Over Will?

How do you know which type of will is best for your needs? While most people likely assume a simple will or last will and testament will cover their wishes, it can provide great peace of mind to have this legal process secured before an emergency develops. Learn the difference between simple wills and pour-over wills by seeking legal advice.

Simple Wills

One of the most important estate planning documents is a simple will. For those who die intestate, i.e., without leaving a will, the cost to the estate can be significant. State law determines who will inherit the property of a person who dies intestate. (Family members are often required to cover the costs of funeral expenses and probate process.) Additionally, the state’s legal requirements may distribute assets in a way that the decedent never would have intended. All too often, disputes over property can cause family feuds.

A simple will or last will and testament can avoid some of these issues. A simple will is a legal document that states who you want to inherit your assets and belongings after you pass away.

Pour-Over Wills

Some people in Florida who have created an estate plan that is primarily based on a living trust might also want to make a pour-over will. The advantage of a pour-over will is that it can ensure that any assets not placed in the trust or passing through other means, such as a beneficiary designation, will become part of the trust when the person dies.

A pour-over will is intended to act as a safeguard. It is better to review an estate plan annually or when there are major changes to the family, care decisions, tax laws, or assets. A wise place to keep any type of will when it is not being used or reviewed is in a safe deposit box.

If a person does not have a pour-over will or a will that designates what will happen to assets not placed in the trust, those assets may be distributed according to state law. The result could be family members receiving assets they were not intended to have or being denied assets you wanted them to receive.

People who do not have a trust as part of an estate plan might want to discuss the advantages with an estate planning attorney. A trust may be useful to control how assets are distributed to a beneficiary who may be irresponsible with an inheritance, to a relative with special needs, or to a minor child, etc. A person can specify when distributions are made or set up the trust so that the trustee manages when distributions happen. There are several other complex ways to set up trusts to reduce estate tax or provide charitable contributions. In some cases, an irrevocable trust may be used to protect assets such as personal property, a life insurance policy, social security, etc. against creditors or debt collectors.

Learn more about Wills and Trusts at an Estate Planning Workshop. Please contact the Law Offices of Amy B Van Fossen for legal advice related to wills, estate planning, and more. 


Editor’s Note: This content was originally published in June 2021 and has been updated for freshness and accuracy.