Intestate – What does it mean and how does it affect my estate?
Where there’s a will, there’s a way. Where there’s not a will, well, there’s intestacy.
“Intestate” means without a Will. “Intestacy” describes the condition of an estate being intestate. Sometimes, when a Will is found to be ineffective or invalid, intestacy results.
Intestacy can result in unwelcome surprises. Every state has its own laws and rules with respect to how probate assets are divided among heirs in intestate estates. In Florida, if you are intestate, your assets will flow as follows (note – you are the “decedent” in our hypothetical):
Note that “descendants” means children, grandchildren, great-grandchildren, etc. Any person below you in your bloodline is your descendant. It’s unfortunate that “decedent” and “descendant” differ by only 3 letters, many have been tripped up by this, so read carefully.
And so we see our first potential surprise. While you may be happy with your spouse receiving your entire estate, others (particularly in those in 2nd or 3rd marriages) may be surprised to find that their children receive nothing – even if they are adults. What’s more, in other states, the spouse simply receives half in all cases, which of course could be just as much of a surprise.
Share of other heirs:
The part that does not pass to your surviving spouse (or all if you have no surviving spouse), will be distributed as follows:
If none of the above apply, it gets more complicated. First, the estate is divided into halves. One-half will pass to the decedent’s maternal family (descendants of the decedent’s mother’s grandparents), and one-half will pass to the decedent’s paternal family (descendants of the decedent’s father’s grandparents).
Then, each of the maternal and paternal halves will pass in the following order:
If there is no paternal family, then the paternal half will pass to the maternal family in the same order. Conversely, if there is no maternal family, then the maternal half will pass to the maternal family in the same order.
If the decedent has none of the above living relatives, the assets will pass to the family of the decedent’s last deceased spouse (as if that spouse survived the decedent) in the same orders as above.
Finally, if none of the above apply, and any of the descendants of the decedent’s great-grandparents were victims of the Holocaust, then the assets will pass to those persons.
As you can see, the order of priority gets more and more arbitrary the further away the relationship becomes. This can lead to strange and unwanted results. Perhaps you would like part or all of your estate to pass to a favored niece or nephew. With intestacy, the result could be that the niece or nephew share equally with your (perhaps wealthy) sibling.
What to do?
Easy. Don’t die intestate. Make sure you have a will (or better yet, a will and revocable trust).
Equally as important: Make sure your will or revocable trust is competently drafted. Many documents contain errors.
A frequent error we see is the will that gives assets to the decedent’s spouse and/or children, but is silent as to what happens if they don’t survive the decedent. If the will doesn’t tell us how to distribute any piece of property or group of assets, then that piece or group will pass under these intestacy rules.
Any questions? Please feel free to get in touch. Click here to send us an email and find our phone & address info. Click here to learn more about the probate and estate settlement process.
About Oakstone Law, PL
Oakstone Law PL was founded by Bob Kleinknecht. A member of the Family Trust Subcommittee, the Estate Tax & Trust Planning (ETTP) Committee and the Real Property, Probate & Trust Law (RPPTL) Section of the Florida Bar, Kleinknecht has 15 years’ experience.
Prior to founding Oakstone law, he spent more than eight years serving as a personal, in-house estate, tax and charitable planning attorney for a Forbes 400 family in New York and Florida. Before that he was an estate planning and estate settlement attorney with prominent firms in Boston and Washington, D.C. after beginning his career with a boutique firm in Naples, Florida.
Licensed in Florida and Massachusetts, Kleinknecht has developed a practice model that eliminates billing by the hour and offers a streamlined, customized client process supported by technology, security and a personal approach.
For more information on Oakstone Law, click here. To get in touch with us, click here to send us an email, or call 239-206-3454. Our office is located at 5137 Castello Drive, Suite 2 in Naples, Florida 34103.