It is very common for persons to procrastinate in preparing a Will, Trust, or other estate planning documents. But, have you ever thought about it this way?  If you haven’t prepared your own Will or Trust, you are letting the Florida Legislature decide who will inherit your property.


For those persons who have not prepared their own Will, Florida’s “intestate succession” statutes provide the procedure for distribution of property owned by an individual upon death. In many cases, the statutory plan is different than that which most people would choose for themselves.  Let’s take a brief look at the intestate succession statutes, and see if you are surprised (and satisfied) by what the Florida Legislature has prepared for you.


If a person dies (“the decedent”) without leaving a Last Will and Testament, the Florida Statutes determine the persons who will receive the decedent’s assets and the percentage of the estate that will be inherited.


Most married couples might assume that their surviving spouse would receive all of their property.  Surprisingly, that is not always the case.


In fact, under Florida law, the surviving spouse receives the entire probate estate only if: (1) there are no surviving lineal descendants (children, grandchildren or great-grandchildren) who survive the decedent, or (2) if the lineal descendants of the decedent are also descendants of the surviving spouse.


However, where there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse (i.e., the typical second marriage situation where there are children from prior marriages), the surviving spouse receives only one-half of the estate and the remaining one-half of the estate would be distributed to the surviving lineal descendants. Are you surprised?


If the decedent is not survived by a spouse, the Florida Statutes provide for the following hierarchy of distribution of the estate:

  1. To the lineal descendants of the decedent.
  2. If there are no lineal descendants, to the decedent’s father and mother equally, or to the survivor of them.
  3.  If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
  4.  If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal grandparents, and the other half to the decedent’s maternal grandparents, and if there is no grandfather or grandmother, to aunts and uncles and descendants of deceased aunts and uncles of the decedent. If none of the foregoing are living, the statutes describe further potential heirs, including the kindred of the last deceased spouse of the decedent.


Also, please be aware that if the lineal descendants are minors (under the age of 18), and if the value of the property that is left to a minor exceeds $15,000.00, a Court-administered Guardianship will be required for each of the minor lineal descendants. Not only do these Guardianships involve substantial additional costs, attorneys’ fees, and annual accountings to be filed with the court, they also typically significantly limit the access to the funds for paying living expenses of the minors and make the process of obtaining those funds very cumbersome. And, to top it off, what is perhaps the worst feature of minor guardianships is that the law mandates that the funds and assets be turned over to the minor upon his or her 18th birthday, regardless of whether the child is emotionally mature to handle and manage the funds. Most parents share the belief that their 18-year olds are not mature enough to take on these responsibilities. Yet the Florida Legislature thinks that they are capable adults at age 18. Are you surprised?         


If you have minor children, you need to create a trust for their care. Most clients are surprised how easy and painless this process is to accomplish, and most say that they don’t know why they waited so long to do it.


People in same sex relationships must prepare documents for their loved ones to inherit their assets, as the Florida Statutes provide no assistance for life partners (whether same sex or heterosexual) who are not married.


Many people procrastinate in the preparation of their Will or Trust. It’s simply human nature to do so. However, we have yet to meet a client who is satisfied with the statutory scheme of distribution that the Florida Legislature has created for them.


By working with one of our estate planning attorneys, you can easily create an Estate Plan that will minimize costs and provide for your family the way that you decide. You can also create explicit instructions for your own care during your lifetime, in the event of your illness or incapacity, which is probably the best thing you can do for yourself.