Estate Planning

When someone dies in Florida without a will or trust, their estate passes through the laws of intestacy. Laws of intestacy are based on the legislature's judgment of what most people would want to be depending on their situation. For example, if one spouse in a married couple dies and they have one child together, all of the spouse's property goes to the surviving spouse. If, however, there are children from prior relationships, then the surviving spouse receives half of the estate, and the children receive half of the estate.

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Through the use of a will, trust, deed, or other instrument, a person can have a plan that departs from the laws of intestacy. For example, one can include charitable organizations as beneficiaries under the will. One could also use a will or deed to ensure certain pieces of real property go to specific children.

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A will applies only to property owned in the decedent's individual name at the date of death. A court proceeding called "probate" is necessary to oversee transfer of property subject to a will in almost every situation. If a decedent has jointly owned assets with rights of survivorship, those assets would pass to the joint owner at the time of death by operation of law and would not be subject to the will or require a probate proceeding. Probate proceedings take time and cost money, so often it is prudent to use estate planning to avoid probate.

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Property owned by a trust is not subject to probate. A trust is a common tool used in estate planning to avoid probate. One can title one's homestead, other real property, bank accounts, and other assets where appropriate in the name of a trust. Any assets owned in the name of the trust will not be subject to probate.