There are many planning, specific circumstances and legal issues that will change the answer to this question from a “Yes,” to a “Maybe,” to “No.” The truth is that if you pass away without a Will, the State had determined who will inherit your stuff. You may not like it, but the law is the law. Here are a few scenarios for you to understand how the law works in Florida on whether you need a Will or not.
Married couple have no will. Wife dies. By law, everything goes to the surviving husband. Did the wife need a Will? No, if the intention was to have her husband inherit everything. If she has children from the marriage or previous marriage, then having a Will would have changed the distribution of her estate based on what she had put down in her Will. Keep in mind that simply because this couple was married does not mean the husband gets the stuff automatically after his wife's passing. If she has an account or a piece of real estate in her individual name, the husband will have to go through the court system to probate the assets in order to inherit them. The court process will delay the inheritance and it will cost him money on attorney's fees, court costs, mailing costs, publications costs, etc. This could have been easily avoided.
A young lady is single (not married) but dating her boyfriend for 5 years. She loves him and wants him to get 100% of her stuff after her passing. She thought she was too young and never executed a Will. When she passes, because they are not married, her boyfriend gets nothing, $0, nada, zilch!!! Wow! Yes, everything she owned would go to her parents, if they are live, or her siblings if the parents predeceased her. If they owned a home together, the boyfriend will now be co-owners with her parents. This is something she never thought of and the boyfriend never anticipated. Having done a Will would have allowed the boyfriend to inherit. Still, he would have to go through probate if the girlfriend had assets in her individual name.
Mom of two minor children is divorced. She passes away without having executed a Will. By law, everything goes to her kids. If they are minors, they do not get to use the money or assets they inherited. Instead, a guardianship case has to be established in the court for each child and a guardian appointed to handle the funds/assets that the children inherited and to take care of the children until they are adults. When they reach age 18, they get everything distrusted (50/50) to them. If mom would have wanted the children to wait till they were older in order to have control of the inheritance, the Will or lack of Will did not achieve her goal.
When you pass away, you have no idea where your beneficiaries will be and in what state, e.g., about to file bankruptcy, going through a divorce, disabled, going through a lawsuit. If you only had a Will that left your estate to your child who became disabled, you will disqualify your child from receiving state benefits. Or, if your son is getting divorced, your future ex-daughter in law may very well get half of the assets you left your son. Thus, in these type of scenarios, you will not be helping your beneficiaries, as you may have thought, and your inheritance may all be lost to a lawsuit or a divorce and negatively impact your beneficiaries.
You create a Will that says your nephew Mark gets 100% of your estate. Yet, every account, life insurance, IRA, 401(k) lists your sister Mary as the beneficiary. Even though you wanted Mark to inherit everything you had, he will get nothing because Mary has been listed as the beneficiary. The beneficiary designation controls and not the Will. So, did the Will help in this case. No!
It is a good idea to have a Will, but as you can see, there are times when your estate will not go to the people you thought it would even with a Will. Call us at 239-529-8731, so we can help you plan and achieve your goals.