If I don't have a Will, will the State get all my property?

By: Adam A. Czaya

Another question frequently posed by clients is what happens to their property if they don’t have a will at the time of their death. Many think that the property automatically goes to the state, while others believe the property will pass completely to their spouse. The short answer is that it depends on your family structure. 

A person who dies without a will dies intestate. This means that your property will pass according to the state’s intestate statutes (§§ 732.101-732.111). While it is not common for property to pass to the state, or escheat as it is called, this can sometimes happen.

In Florida, an individual’s estate can escheat to the state when a person dies leaving an estate without being survived by any person entitled to a part of it (F.S. § 732.107(1)). However, before your estate escheats to the State of Florida, there are a long list of individuals who may inherit the estate according to Chapter 732 of Florida’s intestate statutes, which can be found on the Florida legislature’s website, including children, parents, siblings, grandparents, aunts and uncles, among others.

If the estate does escheat to the State of Florida, the state will then sell the property and give the proceeds to Florida’s Chief Financial Officer, who will then deposit the proceeds of the sale in the State School Fund. Even after the funds are deposited with the CFO, heirs of the intestate estate have ten years to reopen the administration and prove they are entitled to the proceeds.

Of course, if you wish to avoid this sometimes complex distribution scheme that the State of Florida has written for you, you can always write your own Last Will and Testament, which will distribute your estate according to your own wishes.

If you wish to create your will or simply to get more information about your estate planning options, please feel free to contact our office and set up a free consultation.

Why is it called a Last Will and Testament?

By: Adam A. Czaya, Esq.

This is a question often posed to us by our estate planning clients and an interesting bit of legal trivia. Historically, a document called a “will” disposed of a testator’s real property, while a “testament” disposed of his personal property. They were often combined into single a document called a “Will and Testament” to dispose of both types of property more efficiently.

Today, we often refer to the single document as a “Last Will and Testament,” although that title assumes that the document is the final statement of the testator’s estate planning wishes, which isn’t always the case. To avoid this potential misstatement, some estate planning lawyers will simply title the document “John Smith’s Will,” or “The Will of John Smith,” as the term “will” has evolved to encompass the historical meanings of the legal terms “will” and “testament” in both colloquial and legal language. However, many lawyers, perhaps wishing to preserve a bit of the history associated with the document, retain the title “Last Will and Testament,” since either title is legally effective.

If you would like to create or update your last will and testament, please feel free to contact our office and schedule a free consultation to discuss your estate planning needs.

What if my will was written in another state?

By: Attorney Adam A. Czaya

Wills written outside of Florida are valid in here in Florida if they were validly written in that state (or country). Florida, however, does not recognize holographic wills (wills that do not have two witness signatures and the signature of the testator). So you will need to make sure that your will does have two witness signatures and your own signature in order for it to be valid here in Florida.

However, even if your will is valid, you may want to consider re-writing your will now that you're here in the Sunshine State. There are advantages to having a Florida will including that Florida allows the testator to create a separate document that distributes tangible personal property without amending their will. Tangible personal property includes things like fur coats, specific pieces of jewelry, or pieces of art. This is very convenient and many people like the advantage of being able to keep a separate list of these tangible personal property items and who they want to leave them to because the process for updating or changing this list is much simpler than revising your will.

A separate writing is only valid if the document is specifically referred to in the will itself. If your will was written in a state that does not allow the use of the separate tangible personal property list, it will most likely not be referred to in your will and you will not be able to take advantage of this convenient statutory provision. More detailed information regarding the separate memorandum distributing tangible personal property can be found at § 732.515, Florida Statutes. If you're considering updating your last will and testament from Florida or from another state, feel free to call our office and schedule a consultation with me.

People's Law School Estate Planning: Part I

The Living Will

In this edition of The People's Law School, Florida Attorney Keith R. Taylor explains the basics of The Living Will for your Estate Planning. Learn how a Living Will works, whether you need one, and when you should get one. Learn more at http://keithtaylorlaw.com/People'sLawSchool.htm.

Coming Soon - New Edition of The People's Law School

We are excited to bring you a new edition of The People's Law School, a free web seminar series that helps you understand and handle your own legal issues without the need to hire an attorney. With the success of our most recent episodes on handling your own small claims case, we want to continue to provide you with the information that matters to you. To make sure we do, we want to know what topic you would like us to cover next. Visit our facebook page to take a quick survey on which topic we should use for our next episode (Understanding Florida's No-Fault Insurance; Dissolution of Marriage in Florida; Basic Estate Planning; or something else) or leave a comment on this post! Thanks for your input!