Where There’s No Will, There’s No Way – To Have A Say After Death

William “Bill” C. Davell, Esq.

The Good News provides a monthly column with important content having to do with topics from the legal community. This month features a conversation with Christine Yates, a director with Tripp Scott.


Bill Davell: Let’s get right to the basic question: Do I need a will as a Florida resident? 


Christine Yates: Well, only if you own property, have any family, especially minor children, own or share ownership of a business and are going to die – but most important, want to have a say in what happens with any of these after your death.

Not to mention responsibilities you may have to ensure family members are cared and provided for.

But beyond a will, smart planning can simplify passing of assets according to your wishes and to fulfill your family’s needs.


BD: How is my property handled if I do have a will?


CY: Let’s start with some basic concepts:


An estate, under Florida statute, is “the property of a decedent that is the subject of administration.” A “decedent” is the person who died, and “administration” is the disposition of that property under the law and/or a will under the more general process known as “probate.”

Certain property is “exempt” from administration, including $20,000 worth of furniture, furnishings, and appliances and two personal motor vehicles, which pass to a surviving spouse or descendants. Other assets can also pass to survivors or designees without going through probate, including life insurance, retirement accounts with designated beneficiaries, property subject to a living trust, and jointly held real estate or financial accounts.

Administration can be formal, or informal for smaller estates. Under one informal process for estates under $75,000, “Summary Administration,” the executor or a family member files a petition for a simplified (and less expensive) procedure to distribute property to rightful heirs. In a “Disposition without Administration,” there is no need for probate because there are essentially no estate assets left beyond funeral expenses and debts.

Formal administration involves a county circuit court filing with the personal representative – the individual designated in the will to “settle” the estate – receiving permission from the court to inform and satisfy creditors, pay any taxes owed, distribute the remaining estate assets according to the will’s terms, and give the court final accounting.


BD: So what happens to my property if I die without a will?


CY: A person who dies without a will is considered “intestate,” and the estate passes according to set statutory provisions. A surviving spouse inherits all assets if there are either no children or only children of both spouses together. If the decedent has children from other relationships, the spouse only gets half and all of the decedent’s children share the other half equally.

No surviving spouse? The decedent’s own children (or grandchildren via a predeceased child) share equally in the estate. From there, or if there are no spouse or descendants, the estate passes, in order, to any surviving parents, siblings, nieces and/or nephews, grandparents, cousins and on to more distant relatives.

Yet in a mixed household, one might actually want a spouse to inherit and control the entire estate to ensure she/he and the family are properly provided for. Or desire greater distributions for children with greater needs or who have served as caretakers, or to include a spouse’s children who are not his/her own.


BD: What happens to minor children without a will?


CY: Parents can ensure proper care of minor children by establishing a “preneed” guardianship, either in a will or separate filing, involving a trusted individual. Assets can be left in trust to finance their care and education until they are of age. Parents can even specify persons in whose care children should not be placed. Naming a “preneed” guardian creates a generally respected “presumption” that the court will appoint the guardian named.

Leaving minor children behind without a will could set off a free-for-all, as any interested family member or even a non-family member can petition the court to become a guardian. Court must give preference to family members and can consider the wishes of the decedent expressed outside a will, the next-of-kin and the child in question, but there is no certainty as outcome.


BD: What happens to my business without a will?


CY: It depends on its form and often organizational issues outside of probate. A sole proprietorship – a business consisting of a person – ends with the owner’s death, and any assets (after settling debts and other liabilities) pass through the normal intestate process, with no provision necessarily for continuing it. A partnership dissolves upon a partner’s death with continuation or distribution of assets depending on an operating agreement, without which these issues can prove complex. Ownership of a corporation is different: the enterprise’s shares pass to heirs, who could agree to continue its operation (or not).

But in all cases, business owners are best off specifying in writing if, how and by whom the enterprise will continue and/or assets will be settled.


By necessity, we’ve only scratched the surface of the many complexities that can arise even if a will exists when it comes to property, family situations and businesses. Nearly all these situations and many others can be foreseen and addressed by a skilled and experienced professional like those in Tripp Scott’s Estate Planning and Probate Practices. Contact us at 954-525-7500 or [email protected].



If you have any topics you think my be of interest to our readers, we encourage you to email us at [email protected].

Read more Ask Bill at: https://www.goodnewsfl.org/author/william-c-davell/

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