Philip C. Rosen Wills and Probate Law Blog on Lawyers.com

What happens to my assets if I do not have a will?

Friday, June 5, 2009 by Philip C. Rosen

Q: What happens to my assets if I die without a Will?

A: If you die without a Will, Florida law is clear on the distribution of assets. If you do not have children, your surviving spouse gets everything. If, however, there are surviving children and a spouse, the first $60,000 plus one-half of the balance of the estate goes to the surviving spouse and the surviving children get the rest, even if they are minors. That is just scratching the surface. It gets way more complicated once other factors come into play.

Here is a story about somebody who died without a Will and caused his family to endure a lot of stress and spend a great deal of money. It is a tale of unintended consequences:

I received a call from a new client whose husband had just passed away. She was a housewife left with two very young children and had no idea what to do. Unfortunately, her husband did not have a Will and their house was only in his name. Through all of her grief, now she had to grapple with the fact that her late husband did not provide for her and their children in a Will. They didn’t have a lot of money saved; she could not afford the house’s carrying costs and would have to sell as soon as possible.

If he had a Will and had left her everything, there would be some administrative matters for my office to handle and we could have wrapped up everything in a couple of months with minimal stress and expense. She could have easily sold the property and moved on with her life.

Instead, we had some real issues to contend with. Simply put, Florida law states that when a property owner with a spouse and children dies, the spouse retains a life estate (that means that the spouse can live there for the rest of his/her life but doesn’t actually own the property) and the children own a remainder interest (they can’t actually take possession of the property until the other parent dies). The main effect is that both the parent and the children need to sign the deed upon a sale or the mortgage if the property is refinanced. That is a big problem since minors cannot sign legal documents.

So, based on Florida law, we had to initiate two guardianship proceedings to have the mother appointed guardian of the children’s property. The court then had to approve the contract for the sale of the property and appointed an independent guardian to ensure that the purchase price was fair and in the childrens’ best interests. When the first sale fell apart, we had to do it all over again. This took over six months.

Once the property was finally sold, the mother got only about 60% of the proceeds. The judge had an independent accountant determine how much the childrens’ interest was worth and ordered that their 40% be put into a restricted bank account. The mother can now only draw on those funds after hiring a lawyer to ask the court for the money and explain what it is for.

I think you get the picture. A simple Will can make a huge difference in your loved one’s lives after you are gone. Think of your family and make sure you don’t put them through what my client went through.

Posted at 14:20 PM

Topic: Wills and Probate