If asked, “what is an estate plan”, most of us probably think of a Last Will and Testament. An estate plan actually encompasses not only certain documents we sign, but includes how we title our property, beneficiary designations we make, and even how we structure ownership of a closely held business. Besides a Last Will, an estate plan may also involve certain written lifetime directives, such as a Designation of Health Care Surrogate (to designate someone to make general health care decisions), a Living Will (to designate who makes decisions concerning end-stage use of artificial life support apparatus) and a Durable Power of Attorney (to designate someone to make financial decisions). Although application of the laws governing failure to implement other estate plan decisions could have potential adverse consequences, including need for a guardianship or litigation to resolve who has the authority to act, this month’s column focuses on the consequences of not having a Last Will.
If a person dies without a Last Will, it is called “intestate”. The way probate property owned by a person who dies intestate is distributed among that person’s survivors is governed by Florida’s intestate statute. The distribution scheme under Florida’s intestate statute may not be what a person would have wanted had he or she expressed intentions in a Last Will. A couple examples may edify how application of the intestate statute could achieve some undesired results.
Mr. Nowill dies intestate survived by his second wife, the second wife’s daughter from a prior marriage (who lived with Mr. Nowill and his second wife), and Mr. Nowill’s three sons from a prior marriage. Mr. Nowill’s sons have not talked to him since he and their mom divorced eight years ago. With no Last Will to say otherwise, Mr. Nowill’s intestate estate will go one-half to his current wife, and one-half to his three sons. If Mr. Nowill solely owned the home he lived in with his current wife and her daughter, and one of Mr. Nowill’s sons is a minor, failure to implement proper “homestead” planning could force Mr. Nowill’s current wife to decide between a life estate or 50% tenant-in-common interest in the place she formerly called “home”. Neither of these options provide Mr. Nowill’s current wife with the security or financial benefit of full home ownership.
Ms. Ineedawill is single and dies intestate survived only by her two sisters and two nephews who are the sons of her brother who died before Ms. Ineedawill. The two nephews were never much involved in Ms. Ineedawill’s life, but her two sisters have always been her closest friends. With no Last Will to say otherwise, Ms. Ineedawill’s intestate estate will go one-third to one sister, one-third to the other sister, one-sixth to one nephew, and one-sixth to the other nephew.
The best way to prevent unwanted consequences from failing to implement an estate plan is to grab your phone and make an appointment with an estate planning lawyer. If you need assistance with preparing a Last Will or with implementing any of your other estate planning needs, at Bob Bible Law, we have the knowledge and over 35 years of experience to help you navigate and structure a comprehensive estate plan.