This week Prince’s death is again in the news as family members go to court over who’s going to get what because the rock start dies without a will.
By some counts as many as 70% of baby boomers and lots of other folks don't have a will. So what happens when someone dies without a will? When that happens, it's called dying "intestate" or without a will and the laws of whatever state you're a resident of kick in.
Here in Florida, intestate laws dictate a hierarchy in terms of who will inherit your stuff. How the laws play out depend on what living relatives you have. But generally that means:
- Your spouse will come first
- Then your lineal descendants (meaning the kids of you and your spouse or grandkids if your kids have passed).
- Then lineal ascendents (meaning your parents or siblings if your parents have passed).
- Then to your grandparents or their heirs if they've passed.
- And then to your deceased spouse’s family.
But nowadays many of us have more complicated situations, including ex-wives or step children or adopted children which can all impact how the intestate laws apply. For example, if you have children or grandchildren, they're entitled to about half your estate (the exact amount depends on whether they're also your spouse’s kids). So if you have no will you may at least want to take the time to figure out who would get what.
If none of your relatives are alive, your stuff will go to the state which is called "escheat." The state then sells it and, here in Florida, that money goes to the State School Fund.
But the more common scenario if you have assets is what we're seeing with Prince. There's over $300 million at stake. So in addition to his sister, half siblings, there are even strangers claiming to be his children coming out of the woodwork.
Depending on your circumstance, even using a form will or one of those kits may be fine, or at least better than having no will. But it really depends on things like what your family situation looks like, who you want to leave your stuff to, and who might contest that. But also how much you have in assets, because remember the whole other aspect of this involves trying to minimize your estate taxes which may require professional planning.
If you are going to use a kit, keep in mind some of the top mistakes:
- For example, the person you choose as executor of your state has to be a Florida resident or related to you in certain ways - by blood or marriage.
- Another mistake I've seen is people directing that their home be sold. You may be entitled to a homestead exemption which protects you from creditor and may not want to give that up. And if you have a spouse or minor child you can't leave your home to anyone else. A lot of kits don't account for these things because strong homestead laws are fairly unique to Florida.
- One important distinction I’ve seen folks using forms misunderstanding is how you leave assets to be shared. That can be done “per capita” which means per head or for everyone who is alive. Or “per stirpes” which means if one of the group dies his share passes to his heirs.
- Another misstep we see is when we can't find the original will and some disgruntled family member contests the copy or when someone leaves their original will with someone who is getting less than they would get if the will is not found and may actually have an incentive for it to get lost. So once you do prepare a will make sure you put it with someone or someplace where it can be easily found.