If you die without a Last Will, something will happen to your assets, rest assured. It may not be what you would like to happen, but it is what you are going to get – that is, it is what others will get of those assets. The State of Florida has written a default Last Will for those who die without one. Florida describes the terms of its default Will in its statutes, specifically in Part I of Chapter 732. The title of that Part is “Intestate Succession.” We sometimes refer to Part I of Chapter 732 as Florida’s laws of intestacy.
Intestate is a word in most English dictionaries. Like many English words it derives from Latin. In this case, English puts two Latin words put together: in which means “no” or “not,” and testate, meaning “having made a Will.” Dying intestate, then, is dying without or not with one’s own Last Will. Dying testate means dying with one’s own Last Will.
Take the client I mentioned in an earlier post, the client who died survived by his second wife. He was also survived by two children by his first marriage and one child by his second. He walked into my office without a last Will, but walked out with a new Last Will that left everything to his wife, the second wife. But what would have happened had he had no Last Will and died intestate? Florida’s Last Will would have provided as follows:
- Because not all his children were by his second wife, then his second wife gets half of the estate.
- His three children divide up the remaining half in equal shares. His two children by the first marriage each receives one third of one-half (or one-sixth of the whole). The child of his second marriage gets one-sixth of the whole as well. (Sadly, my client had been estranged from the children of the first marriage since his divorce decades before.)
Keep in mind, however, that one’s Last Will controls at one’s death only a particular kind or category of assets. Those kinds of assets are called “probate assets.” What are probate assets but assets that one’s Last Will (or Florida’s Last Will) controls at one’s death. That’s a nice tautology but hardly a helpful definition, but that’s what we will call such assets in this blog: assets that are controlled by one’s Last Will (or by the laws of intestacy in the absence of one’s own Last Will), are “probate assets.” But to be a little more specific, probate assets are assets that one owns in his or her own name alone at his or her death and that have no inherent or necessary characteristic imposed by law or contract that makes them non-probate assets.
There are quite a few kinds of assets that are owned by someone all by himself, but have such an “inherent or necessary characteristic imposed by law or contract.” Life insurance on the owner’s life is an example of such an asset. It is a contract with the life insurance company for the benefit of a third party, the beneficiary. It is not a probate asset. It is a non-probate asset, unless the named beneficiary is the owner’s estate, a designation usually to be avoided. We will address further the matter of identifying probate assets and non-probate assets in future posts.
In the case of our client, it turned out that he had very few probate assets. He had employee benefits that named his second wife (except for one of them) as the beneficiary. He owned his home with his second wife (in an ownership form that is known as a “tenancy by the entirety – more on that later) so that she received complete ownership at his death “automatically.” (I put “automatically” in quotes, because nothing concerning who gets an asset when death occurs is “automatic.”) Lastly, he and his wife owned a bank account as “joint tenants with right of survivorship,” another “automatic” situation. So, had he died without his own Last Will, Florida’s laws of intestacy would have controlled virtually nothing.
Let me end this with one question. What if his second wife had died first and, following that, he died without his own Last Will? We will also address that later. I can say now, however, that my client would have not liked the result at all.