- Florida Rules of Intestacy
- The Store Bought Will Or,
How to Save Now and Pay Later
-
The Will of Jacqueline Kennedy Onassis
By Ann Shaw, Attorney at Law
Florida law provides a default mechanism for the
distribution of assets when an individual dies without an
estate plan. This article is a summary of the Florida rules.
Spouse: The surviving spouse will receive all of
the deceased person’s estate if there are no surviving
lineal descendants (children, grandchildren, etc.). If there
are surviving lineal descendants, and the surviving spouse
is the parent of the descendants, the surviving spouse
receives the first $60,000.00 (sixty thousand dollars)
and one half of the estate. If there is a lineal
descendant who is not a descendant of the surviving spouse,
then the surviving spouse receives only one half of the
estate.
Children: As mentioned above, lineal descendants
share with the surviving spouse. If there are descendants
with no surviving spouse, the descendants receive the entire
estate. Children take per stirpes, with an equal
distribution at the children’s level, even if a child has
predeceased the deceased parent. If you are a widow(er)
survived by two children, Adam and Betty, and one child,
Carl, predeceased you, and Carl left two children, David and
Ethel, the distribution would be as follows: Adam : 1/3,
Betty: 1/3 , David (grandchild): 1/6, Ethel (grandchild):
1/6. David and Ethel would divide their deceased father,
Carl’s, share.
No Spouse, no children: With no surviving spouse
or children, the estate descends to the parents, in equal
shares, or to the surviving parent. If the parents are
deceased, the estate goes to the brothers and sisters,
per stirpes.
No Spouse, no children, no parent, no sibling: The
estate would be divided into two (2) equal shares, and
distributed to the deceased person’s maternal and paternal
kindred. The first level would be grandparents, then uncles
and aunts, per stirpes. If there are no surviving
heirs on the maternal side, all goes to the paternal side,
and vice versa. If no heirs on either side survive, and the
deceased person was married, but the spouse died first, the
estate goes to the heirs of the predeceased spouse. If there
are no heirs, then the estate will go to the State of
Florida (escheat).
In many cases, the rules of intestacy are not the desired
way for assets to be distributed. With a proper estate plan
in place, you will decide who gets your property, instead of
the law making the choice for you.
By Ann Shaw, Attorney at Law
I recently received a request from an out of state client
to handle his deceased uncle’s estate. Uncle had passed away
in a nursing home in St. Pete, and the estate qualified for
"Summary Administration" under Florida law.
The nephew sent me his uncle’s will for filing in the
Probate Court. The will certainly looked official, with
"Last Will and Testament" printed in large letters on top,
and with the Uncle’s signature and three witness signatures,
all notarized, at the bottom. The will was not prepared by
an attorney, however, and that caused unnecessary expense in
the end.
The problem was, the will was not "self proving." A "self
proving" will is properly acknowledged by the testator and
witnesses before an officer authorized to administer oaths
(usually a notary public). A self-proving will may be
admitted to probate without testimony of the attesting
witnesses. Although a notary signed and stamped the will
signatures, the required language acknowledging that the
testator had declared that he was signing his will, and that
the witnesses signed in the testator’s presence, was
missing.
When a will is not self-proving, testimony from a witness
to the will is required. That meant that I had to hunt down
one of the witnesses and bring them before a circuit court
judge, or court-appointed commissioner, or clerk or deputy
clerk of the circuit court. The expense involved in doing
this more than offset the "bargain" that Uncle got by having
a non-attorney (of course the preparer didn’t sign their
name) prepare his will, and added to the time required to
probate the estate. Fortunately, the witnesses were still in
the area. If none of the witnesses were available, further
procedures would have been required.
The moral of the story is, have your estate plan prepared
by an attorney. Saving a few dollars now may mean that your
heirs have to spend many more dollars later.
About the author: Ann Shaw received her law degree
from Loyola University of Chicago. She attended while serving as a Police
Officer with the City of Chicago, and retired with the rank of Lieutenant. She
is a member of The Pinellas County Estate Planning Council, and assists clients
in estate planning, health care decision making, asset preservation, and probate
matters.
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