If you own absolutely nothing, don’t care about anyone else, and have no family, friends or loved ones, then no, you do not need a will. For everyone else, you should know what a will can do for you and what happens if you do not have one before you can decide whether you need a will. Let’s look at those two questions.
What does a will potentially do for you?
Having a will does more than just a few things:
- Determines who gets the particular things that you own.
- Determines who does not get things that you own.
- May help support your spouse or family.
- Helps reduce the amount a lawyer may make out of what you left behind.
- Allows more to go to your family and loved ones than to court and legal costs.
- Helps determine who will raise any minor children or provide for a child with special needs, or a beloved pet.
- Determines who will oversee the distribution of your estate, in Florida that person is called the Personal Representative.
- Can provide a way to help in special circumstances such as setting up a trust for a family member with special needs or providing a donation to a church or charity that may hold a special place in your heart.
- May reduce the risk that what you leave behind will be misused.
- May reduce the risk of a fight between your relatives over your money and property.
- Prevents the state from getting what you leave if you have no heirs under the law.
- Gives you an opportunity with a well-designed estate plan to reduce taxes on appreciated assets, leaving more for your loved ones and less for the government.
- Gives you a final opportunity to give a Christian witness to who and what is most important.
What happens if you have no will?
Every state is different, so I will address this only from the perspective of Florida residents with their assets in Florida. Florida has a reasonably direct even if not crystal-clear scheme for what happens when a person dies without a will, which is referred to as dying intestate.
If you are married, Florida law provides the following for your spouse:
- 732.102 Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
For the rest of the family, Florida law provides the following:
- The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
There are a few additional sections intended to help in special circumstances including half-blood children, children conceived but not yet born, adopted children, and children born outside of marriage.
Is law that clear? Not for many people and certainly not in all circumstances. A will may help you avoid many concerns about who ends up with what.
Who should prepare a will?
I have a friend who does estate planning and she refers to online wills as great ways for people to create litigation. I agree. I have read wills prepared by online services and often the wills leave as many if not more questions to be answered by the courts than if there was no will. Truthfully, the cost of an attorney to prepare a simple will for a person without many assets is still some of the best money spent during life. A will should be prepared by someone trained to understand the law, experienced and willing to ask detailed questions to determine what your wishes are, and able to write a will that can stand up to a court challenge.
What can an attorney do that an online will company can’t do?
I am glad you asked! The answer could literally fill a book because the answer includes everything a lawyer learned in law school courses on wills and trusts as well as legal writing, in continuing legal education courses, and in experiencing the questions and issues presented by dozens, hundreds and perhaps even thousands of people and families. That includes knowing what to ask about whether you want to include the children of children who predecease you, how your vehicles title passes, how bank accounts, investment accounts and other financial assets can be prepared so probate costs and taxes can be reduced or eliminated, how you can deed your property to reduce or eliminate probate costs and delays in transfer, whether you can or should use a Lady Bird deed, just to name a few questions that are common.
I am a lawyer but I would not prepare my own will or trust, even though I took Estates and Trusts I and II in law school. I am not foolish enough to believe that two law school courses and 40 years of experience in litigation as well as reading statutes and laws qualifies me to prepare my own will. Hire an expert like I did and you will not be disappointed.
To learn more and get a few suggestions about who you can hire, give The Idlewild Foundation a call. The Foundation was established to promote planned giving and would be happy to discuss with you the options available. We love to promote the idea of creating and leaving a legacy through planned gifts.
About the Author
John Campbell has retired from a 40-year legal practice as a trial attorney in Tampa. He has served in multiple volunteer roles at Idlewild Baptist Church in Lutz, Florida, where he met Jesus. He began serving as the Executive Director of the Idlewild Foundation in 2016. He has been married to the love of his life, Mona Puckett Campbell, since 1972.