Avoiding Intestate Distribution of Assets

When you lose a loved one, it is not uncommon to want to retain some belonging of theirs as a memento of the person, or to be granted an asset like an automobile or bank account in their will. However, if the deceased person’s will is not in order, you may not get to keep that asset, because then their property is required to be divided under what is referred to as the intestate distribution system. Someone who dies without a valid will or trust is said to have died intestate, and if this happens to your loved one, their property will be given to the people stated by law, with no regard to their wishes.

What Is A Valid Will?

In order to avoid intestacy, a person must have a valid will. In Florida, a will is considered valid if it is in writing and executed in the proper manner – signed by the testator (or on behalf of the testator, if they cannot write) and bearing the attestation of at least two witnesses. The witnesses must sign at the same time as the testator, so as to ensure that the document is unchanged from when it was created. Handwritten, wills are considered valid in Florida if they are witnessed and signed appropriately, but it is imperative to understand that a traditional holographic will (a will written in the testator’s handwriting and signed, with no witnesses) is invalid.

Intestacy may be total or partial in Florida, meaning that part of a person’s will may be considered valid while another part is invalid. This can happen most commonly if a person redoes their will, or executes a codicil (a type of addendum that functions as part of the will), but in theory anything that renders a clause in the will unenforceable might trigger partial or full intestacy. Partial intestacy also can happen when someone does not make provision for all their assets in a valid will. Either way, assets which are not provided for by estate planning will fall under the aegis of Florida’s intestacy system.

Distribution Is Clear

Who exactly receives the assets of someone who dies intestate depends on the person’s surviving relatives. If one looks at the law surrounding a spouse’s portion, for example, it states that if the deceased has no other descendants, the spouse receives the entire intestate estate. If the deceased left descendants who are not lineal descendants of the surviving spouse (in other words, not his or her children with the surviving spouse), the spouse receives half the intestate estate. The portions for any surviving children likewise will fluctuate.

It is important to keep in mind that any children or other family who are not blood related are entirely ignored by intestacy law. If you have stepchildren or other family who are not related to you by blood, and you die without providing for them, they will get nothing either under your will or under the intestate system. Florida law holds that if someone is left out of a will or trust, it is assumed to be deliberate absent any information to the contrary – in other words, the law assumes that if you intend to provide for your stepchildren, you will. This can lead to problems if your will is declared totally or partially invalid.

Enlist An Experienced Attorney To Help You

Because it is so important to ensure that your will and other estate planning instruments do not have any potential problems built in, you need a knowledgeable estate planning attorney to create them. At the Law Offices of Steven A. Mason, P.A., you will work with a Hollywood wills and trusts lawyer with enough experience to know what needs to be done. Call our office today at 954-963-5900 to schedule an appointment.

Resources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.102.html

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.502.html