In this fourth blog post in our ongoing series on basic questions about estate planning, we’re going to take a look at what might happen should you not create a plan. As a capable adult living in the state of Florida, you are under no legal obligation to create any kind of estate planning tool or document. For example, if you don’t want to, you do not have to create a will, power of attorney, or any kind of advance medical directive. You can go your entire life without having to answer the questions that estate plans allow you to address.
But what happens if you don’t have a plan? What happens to all the questions and issues that estate planning addresses? Let’s take a closer look at some basic questions surrounding this concept.
Basic Question 10. What happens to my property if I don’t have a plan?
Leaving behind an estate that is not controlled by an estate plan means that someone else will make your inheritance decisions for you. For example, should you die without a last will and testament in the state of Florida, you are said to have died intestate. When you leave behind an intestate estate, pre-existing Florida law will determine who inherits your property regardless of what your wishes might have been.
So, let’s say that you leave behind an estate, a spouse, some children, and some grandchildren. You made it clear in your lifetime that you wanted to leave an inheritance to your children and your grandchildren. Unfortunately, Florida intestate succession laws will not take your desires into account. Instead, and assuming that your children are also the children of your spouse, your spouse will inherit all of your property.
In other situations your property might be distributed to other close relatives. However, should you not leave behind any identifiable living relatives, your entire estate will pass to the state of Florida.
Basic Question 11. Who will look after me if I’m incapacitated?
Aside from inheritance questions, estate plans also allow you to address what you want to happen should you become incapacitated. If you don’t have a plan, the questions that your incapacity plan addresses will also need to be answered.
Should you become incapacitated without an incapacity plan, it will likely fall to a close living relative to make decisions on your behalf. Once a court has determined that you are incapacitated, it will name someone to be your legal representative. Again, even if you had clear wishes about who you wanted your representative to be, the judge will make the determination based on the requirements made under Florida law, and not on your desires.