If I Am Married, Do I Need A Will?

last will testament

I would like to answer this question as – “yes.  Trust me on this, you need a will even if you are married.”  However, most people don’t trust lawyers, so I will explain why you need a will even if you are married.

This post would be longer than anyone is willing to read if I listed all the complications that can occur when spouses die without a will.  But, let’s cover the most common questions and complications.

 

What if we own everything jointly?

If you and your spouse own truly everything jointly, then all assets will pass to the survivor upon the death of the first spouse.  However, this is a “big if.”

Most couples fail to own absolutely everything in joint names.  Many forget the “vacation fund” bank account, or the bank account one spouse opened just to receive the free gift for opening it, or the lot inherited by one spouse, or a few shares of stock, or some other small asset.  This can result in paying more in probate fees to transfer the asset than the asset is worth.

Even if spouses own absolutely everything jointly, joint ownership only passes title when the first spouse dies.  It does not pass title after the death of the second spouse.  And – consider this:  unless the surviving spouse prepares a will after the death of the first spouse, all assets will eventually pass to the family of the surviving spouse, and nothing will pass to the family of the first spouse.

 

Asset Flow Upon Death of Spouse

 

This result works fine if the couple have children, neither spouse has children from another marriage, no children are deceased, and the couple want each child to inherit an equal share of assets outright. In today’s world, many couples have blended families with children from previous marriages, or no children at all, or deceased children, or children with special circumstances (such as disability or substance abuse).   Outside the “typical family” for which the Florida inheritance statutes were written, relying on joint ownership does not work.

In addition, consider the mental and physical condition and circumstances of the surviving spouse at the death of the first spouse.  Is the surviving spouse mentally and physically capable of making a will at the time of her spouse’s death?  Is the surviving spouse subject to undue influence from a family member, friend, or other person at the time of her spouse’s death?  Is the surviving spouse receiving government benefits (such as Medicaid) that will be terminated if she receives an inheritance?  No one knows how long each spouse will live.  It is always best to make a will when the testator (the person making the will) has full mental and physical capacity.

 

What happens if we have some separate assets?

If one spouse dies without a will, his separate assets must be transferred in a probate court proceeding.  This is called “dying intestate.”  Intestate means without a will.

When people say “I don’t have a will,” I like to say, “yes, you do.  It was written by the State of Florida and you may not like it.”

When a person dies without a will, Florida law says that his assets will pass to his spouse – if he has no children or all his children are also children of the spouse.  If a person dies with a spouse and children from another marriage, 50% of the assets will pass to the spouse, and 50% will pass to the children.  If some of the children are deceased or one of the assets is a homestead property owned only by the deceased spouse, the situation is more complicated.  The situation is also complicated if one or more of the children are minors, incapacitated, or receiving government benefits.  You can look this up by reading Florida statute section 732.102, 732.103, and 732.104.

 

Consider who will administer the estate.

When a person dies without a will, Florida statutes say who has authority to administer the estate.  That person is called the “Personal Representative” of the estate.  Deciding who is appointed as Personal Representative is called “preference in appointment.”

When a person dies without a will, the surviving spouse has first preference to serve as personal representative.  If she does not want to serve, or cannot serve, she must decline or be disqualified by the court.  The heirs “next in line” have the next preference to serve.  If they can agree, or a majority choose the personal representative, that person will serve.  But, what if the heirs do not agree or one of the heirs cannot be located?  You can see how quickly the seemingly simple process of appointing a personal representative becomes complicated, difficult, and sometimes expensive if heirs want to fight about who will serve.  You can look up preference in appointment at Florida statutes section 733.301.

 

The Takeaway

Everyone should make a will, even if they believe they “have nothing.”  A simple will is easy to prepare and relatively inexpensive.  It makes passing assets after death much easier, quicker, and less expensive.  It can also include provisions for special circumstances.

If you need only a simple will, consider the “Simple Life Plan Package” offered by Blackburn Law Firm, PLLC at a discounted fee.  If you have questions or wish to discuss specific circumstances, schedule a complimentary consultation with Cathy to find out about your options.

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