Creating a will is important to ensure that you have control over where your property and your assets go upon your death. A will is a simple yet essential estate planning tool and, upon your death, the distribution of property in your will should be carried out through the probate and estate administration process. If you do not have a will, then you are said to have died intestate. This means that the laws in the state where you live will govern how your property is transferred or distributed after death.
The Transfer of Property Without a Will
A variety of things can happen to your property after your death if you have no will, and the outcome will vary depending upon the circumstances and how the property was owned. For example:
- Property that was jointly owned under certain types of ownership rules such as tenancy by the entirety or joint tenancy will transfer to the co-owner as determined by the property title.
- The proceeds of life insurance policies will go to the designated beneficiary or beneficiaries named in the policies.
- Money in an IRA, 401K, or payable-on-death bank account will go to the named or designated beneficiary as will securities in a transfer-on-death account.
For assets that were in your sole name with no beneficiary, the state intestacy laws will direct that your closest relatives will receive the remainder of your property. The intestacy laws dictate exactly how the property is divided and which relatives take priority. In Florida:
- If you have children but you do not have a spouse, your property will transfer to your kids.
- If you have a spouse but you do not have children, then everything you own will transfer to your spouse.
- If you have a spouse and children with that spouse and your spouse has no kids from outside the marriage, then your spouse will inherit all property.
- If you have a spouse and you had kids together, but your spouse also has children from outside of the marriage, then your spouse will inherit half of the property and your kids will inherit the other half.
- If you have a spouse and you have kids from a prior relationship, then your spouse will get half of the property and the kids the other half.
- If you have no spouse and no kids and your parents are alive, your parents will inherit all of the property.
- If you have no spouse, no kids and no parents, your siblings will inherit.
In a case where you have grandchildren but your kids are no longer alive, the same rules will apply with the grandkids taking the place of your kids. For example, if you have a spouse and a surviving grandchild from outside of the marriage, then the spouse and the grandchild will each receive half of the property.
An experienced attorney can help to explain how the intestacy rules will apply in your situation. You should also strongly consider talking to a lawyer about the creation of a will to ensure that your property transfers in the way you wish after your death.
category: Probate & Trust Administration