I run into this question frequently both in my estate planning and probate practice. It is vital that you have a valid Will prepared for many reasons. If you have items you want to leave to certain people you must properly execute a Will to do that or many times it will not be possible. The Florida Bar states: “While any sort of property may be transferred by will, there are some particular interests in property that cannot be willed because the right of the owner terminates automatically upon death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are: • Except in certain very specific circumstances, a homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits). • A life estate: property owned only for the life of the owner. • Any property owned jointly with another person or persons with the right of survivorship (for example, a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be a property that automatically passes to the joint owner). You may not disinherit your spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either his or her share under the will or a portion of your property determined under Florida’s “elective share” statute. This statute uses a formula to calculate the size of the surviving spouse’s elective share, which includes amounts stemming from your jointly held and trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to an attorney with extensive experience in this area of law. Also, if your will was made before the marriage and the will does not either provide for your spouse or show your intention not to provide for your spouse, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate), unless provision for the spouse was made or waived in a marital agreement.” If I can answer any questions about a Will, estate planning, probate or guardianship please feel free to call me at (904)366-2703 or email me at [email protected]
Personalized Counsel. Customized Legal Services.