Wills

Using a Will to Direct Transfers of Property

Using a Will to Direct Transfers of Property

Important but misunderstood

Many people think that a will is a document that is used to avoid administration of their estate. While this is untrue, a will is still an important document for many people to consider.

The function of a will is significant as it does a few important things. First, it can be a way to direct arrangements regarding burial, cremation, etc. Second, it is an opportunity to select who will act on behalf of your estate. Known in Florida as the personal representative, this person can be granted authority to administer your estate, deal with the IRS for purposes of filing tax returns, direct continued small business operations and preserve estate property just to name a few examples. Finally, a will can operate as a backstop or fail-safe in the event that there are any assets that were unaccounted for in a comprehensive estate plan. While there may have been known assets and liabilities at the time an estate plan was created, it is impossible to foresee all the future assets and liabilities existing after the plan is made. At the very least, the will can direct the disposition of any property unaccounted for and serves as an integral park of most good estate plans.

Estates Without a Will

The Florida Laws of Intestacy

What happens to probate assets if there is no will?

If a person did not leave a will, and there are asset's subject to probate, they will be transferred in accordance with the laws of intestacy. This is a set of laws in Florida that serves as the default rules for transferring property subject to probate upon death.

Special Concerns with Real Estate

Homestead

Are there special provisions regarding real estate when a person dies?

Yes. The primary residence of a person living in Florida may constitute what is referred to as the homestead property. In certain circumstances involving surviving spouses and minor children, there can be limitations of the transfer of the property regardless of the provisions of the will.

Special Concerns with a Surviving Spouse

Elective Share

Are there special rules relating to a surviving spouse in probate?

Yes. There are situations where a surviving spouse may bring an action called elective share which generally happens when there is little or no provision for a surviving spouse in the deceased spouse's estate. Elective share can effect both property subject to probate administration as well as property that would otherwise be transferred outside of probate proceedings.