More Than Half of Americans Don’t Have a Will, Do You?


Because so many people never write up a Will, Florida has a law that writes the Will for them. But, don’t relax quite yet – that Will may not send the assets where you want or put the right person in charge of your estate.

Marsha and Barbara were cousins and close friends for most of their lives. Marsha lived here in Florida while Barbara lived up north. Barbara visited for months each winter, and the two traveled together every year. Neither had married nor had children. As with many close friends and loved ones, they never discussed their estate plans.

Barbara came to Florida to be with Marsha during her last days. After Marsha died, Barbara set out to honor her wishes and searched the home for a Will. None was found. Her attorney reached out to the local attorney community with no success. Eventually, it was determined that Barbara had no will and her estate would be distributed according to Florida law. Marsha’s parents and siblings had all died before her. Each of her three siblings had children. She barely knew them and hadn’t seen any of them in many, many years. Even so, all of her earthly belongings went to the children of her three siblings.

It may have been that Marsha would have wanted to leave her belongings to her unknown relatives, but most likely not. Had she written a Will, she could have left her estate pretty much any way she wanted – even leaving everything to Barbara if that was her goal.

While Florida law has certain protections for spouses and minor children, those protections rarely extend to the entire estate. In most cases, people can leave their estate to whomever they wish. They can include or exclude people who would (without a Will) be a legal heir. But, those choices must all be done through a properly drafted and executed Will.

Florida law of intestate (without a Will) directs where the assets will go and who can be the personal representative of executor.

Here is a list of people, in order of inheritance, that might be included if the person had no will:

  • Spouse
  • Spouse and children that are minors or not spouse’s children
  • Children, or children’s descendants
  • Parents
  • Grandparents
  • Aunts and uncles
  • Cousins

The list goes on until no possible living heirs can be identified. In that case, the estate “escheats” or goes to the state.

The beneficiary is determined by who is living at a certain line. This means that if there is a spouse, it stops at the first or second line. When a judge determines who will be included, everyone in a certain class (like cousins if no one above them is living) would be included. Then, there must be a determination of whether relatives are full blood, half blood, or less related to the decedent.

The shares then get broken down accordingly. The process of determining legal beneficiaries can become quite messy and costly. We all dream of that rich distant relative we never met, but it rarely happens.

Sadly, without a Will many people the decedent would have included are left out, just as Barbara may have been left out. People who are not included under intestate laws include unmarried partners (Florida does not recognize common law marriage), step-children (unless legally adopted), relatives that are not biologically or legally relatives (like your mother’s best friend that raised you) or foster parents. A decedent may have expected to include step-children who were never legally adopted or “cousins” that were not actually cousins. But, because there was no will, those people are completely left out.

Contact our attorneys today to schedule a consultation so we can discuss your case and possible solutions.

By, April Hill