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Many people put off estate planning because they believe they don’t own enough to make it worthwhile, or assume they will get around to it eventually. The reality is that you never know when you will need to use your estate plan. Understanding what happens when you don’t have an estate plan can help you better plan for the future, and avoid the risks of sending your family to probate court.
An estate plan is essential for people who want to control what happens to themselves in their final days and their assets after their death. But Florida residents die without an estate plan every day. When that happens, the Florida Probate Court applies the state’s intestacy laws to distribute the deceased person’s assets. These laws provide a default structure for paying your final expenses and dividing up your assets among your next of kin, should you die with no estate plan.
If you don’t have estate planning when you die, anyone close to you can file a petition in the Florida Probate Court to administer your estate. The Court will then:
The same basic process applies after you execute a Last Will and Testament. However, in that case, your wishes control, rather than the state’s default laws. Without an estate plan, your family will need to accept a standard distribution of assets, and that can lead to inefficient and costly distributions of assets.
Relying on the default intestacy laws may sound fine if you intend your property to pass to your close relatives anyway, but the truth is there is a downside to avoiding estate planning. Intestate succession laws are rigid, awarding each heir a set percentage of your assets based on their legal relationship to you. This can create problems when:
You may have one or two assets that hold substantial value compared to your other accounts, especially if you are a homeowner. Because intestate succession is based solely on a percent of the total value of the property in your estate, if you have no estate plan your personal representative may need to liquidate your most important assets just to satisfy the statute.
An estate plan allows you to do more than designate beneficiaries. You can also select who you want to administer your estate, or care for your minor children as guardian. Without this guidance, the Probate Court may select someone you would not want handling your affairs, simply because they were the one to file the death certificate and ask for the job. While the probate court has the discretion to select a different personal representative, if no other person comes forward in time, the Court may not be aware of reasons the petitioner is not the best candidate.
You may well have people you want to provide for after death that do not fit within the structure of intestate succession. Step-children, life partners, friends, and charitable organizations are all excluded from receiving inheritance when there is no estate plan. There can also be complications when a child’s paternity is questioned, or when it is difficult to locate legal heirs. In the most severe cases, your estate may even escheat directly to the state, rather than any of your friends or loved ones.
An estate plan assures your loved ones that the Court is doing what you think is best. Without the benefit of your last wishes, your family members may be more likely to contest the distribution of assets. This probate litigation will drive up the cost of estate administration, delay the distribution of your assets, and create tension between your family members.
The larger an intestate estate, the more likely it is to trigger estate taxes and higher probate court fees. While there is no Florida estate tax, federal estate taxes apply any time a person’s total probate estate exceeds $13.61 million (as of 2024). In addition, if you hold property in other states, those properties may be subject to state estate taxes. In addition, the larger an estate is, the higher the probate court fees that apply to the administration of the case. This is why many people with substantial assets use estate planning to reduce the size of their probate estate and implement strategies to offset or avoid estate taxes.
Estate planning isn’t just about your finances, though. It can also help you get medical care and pay for expenses if you become seriously ill or injured, or even while recovering from surgery. A robust estate plan includes more than just a Will. It will also provide documents that can provide for you medically and financially, should you become incapacitated, including:
These are important parts of any estate plan because when an emergency arises, they trigger automatically, should you become incapacitated. Without these documents, your family will lose precious time as they petition the Court to name a guardian and conservator to make those decisions for you.
At Harrison Estate Law, we can help you avoid intestate succession by building a complete estate plan that provides for the people you value most. We are happy to help you develop a plan for your end-of-life care and your assets, and protect your family from unnecessary taxes and costs. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call. We are now available for extended evening and weekend appointments.
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