One of the things that many estate planning clients are surprised to learn is that, even though they have never created a will or other estate planning tool, they effectively already have an estate plan. Why is this? It’s because every state, including Florida, has adopted laws that make your estate planning choices for you. These laws apply to you and your estate if you don’t make an estate plan of your own. This effectively means that everyone in the state of Florida has a default estate plan whether they realize it or not.
Estate Plans and Florida Intestacy
One of the primary purposes of developing an estate plan is to choose inheritances. The property you leave behind you after you die will have to be transferred to new owners. Because it’s your property, you get to choose who those new owners are. You do this by creating a will, or by creating another type of estate planning tool, such as a living trust, that can distribute your property after you are gone.
But most people never get around to making an estate plan. Because of this, Florida has inheritance laws that apply when someone dies without a will. These are called laws of intestacy or intestate succession. Through intestacy laws courts can easily determine who stands to inherit your property because these laws establish a predetermined inheritance plan.
For example, if you die in Florida and leave behind a spouse but no children, your spouse automatically inherits everything. If you leave behind the spouse and children who are also descendants of your spouse, the spouse still inherits everything. On the other hand, if you leave behind a spouse and children from a previous relationship, your spouse will inherit half of your property while your children will inherit the remaining half.
Estate Plans and Incapacity
Another key element of any good estate plan is making provisions for what might happen to you if you become incapacitated. Through advance medical directives, powers of attorney, and other tools, you can make decisions that you otherwise would not be able to make if you became unconscious or incommunicative.
If you don’t have an estate plan there are laws that will determine who gets to make these decisions for you. In Florida, a court will have to determine who becomes your guardian. Under the law, the court will choose a guardian and give preference to anyone related to you by blood or marriage. It will also consider who has the relevant educational or professional experience to manage your affairs, as well as who has the ability to manage any financial or legal obligations.
In short, if you don’t create an estate plan, a court will determine who makes your decisions for you.