What Is A Will?
A will is a document signed by the decedent and witnesses that meets the requirements of Florida law in which the decedent can name the beneficiaries whom the decedent wants to receive probate assets. The decedent can also designate a personal representative (also known as an executor) of his or her choosing to administer the probate estate. If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.
What Happens If There Is No Will?
If someone dies without a valid will, he or she is “intestate”. Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The State will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution probate. There are some exceptions to these rules which is why it is important to have an attorney help you through the probate process. If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:
If the decedent was survived by his or spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate.
If the decedent was survived by his or her spouse and left one or more descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the decedent’s lineal descendants share the remaining half.
If the decedent was survived by his or her spouse and left one or more descendants (at least one of whom is not also a descendant of the surviving spouse), the surviving spouse receives one half of the probate estate, and the decedent’s descendants share the remaining half.
If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law.
If the decedent was not married at his or her death and had no descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.
What Is A Personal Representative and What Do They Do?
The personal representative is the person, bank, or trust company appointed by the Judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix”. To qualify as a personal representative an individual must be a Florida resident or a close relative.
The personal representative has a legal duty to administer the probate estate pursuant to Florida law and if the personal representative mismanages the probate estate they may be liable to the beneficiaries for any resulting harm they may suffer. The personal representative must:
Identify, gather, value, and safeguard the decedent’s probate assets.
Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
Conduct a diligent search to locate creditors, and notify these creditors of the time by which their claims must be filed.
Object to improper claims, and defend suits brought on such claims
Pay valid claims.
File tax returns and pay any taxes due.
Employ professionals to assist in the administration of the probate estate (for example, attorneys, certified public accountants, appraisers and investment advisors).
Pay expenses of administering the probate estate.
Pay statutory amounts to the decedent’s surviving spouse or family.
Distribute probate assets to beneficiaries
Close the probate estate.
A living will is a document that enables you to specify what kinds of actions should be taken if you are facing an end-of-life situation, such as whether you wish to remain on artificial life support or use life-saving measures. This is a very important document if you want your wishes to be followed. The Living Will allows you to state your wishes about medical treatment in the event that you develop an irreversible condition that prevents you from making your own medical decisions.
Health Care Power of Attorney
Included in the Living Will is a Health Care Power of Attorney, also known as a Healthcare Surrogate, which designates someone to make healthcare decisions on your behalf. Also known as a Health Care Proxy, this part of the document allows you to name someone to make decisions about your medical care, including decisions about life support, if you can no longer speak for yourself. Having this document in place is highly advisable as it will allow your family, doctors, and care team to know your wishes and in an emergency situation it will allow your family or healthcare power of attorney to make decisions without the extra emotional burden of having to guess what your wishes were.