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WHAT IF ...

Recently, I left the comfort of working for a trust company downtown to form my own law practice closer to home.  I practice in the areas of wills, trusts and estates, so I prepare wills and trusts for families and help administer estates when a family member dies. 
 
Over the course of the past few months, I have been telling friends and acquaintances about my new practice.  Most of them responded by telling me that they don’t have a will.  It is a little startling to hear that because most of my friends have children and some of them are on their second and third marriages! 
 
You are probably thinking that, because you don’t have a lot of money, you don’t need a will.  That’s not necessarily true.  Have you ever thought about what would happen to your minor children if you died without a will?   If you don’t have a will or a document called a “designation of pre-need guardian”, then the court will appoint the guardian if both parents die.  The guardian may not be the person you would have chosen and he or she might not share your views of how your child should be raised.
 
Now you might be wondering what happens to your assets if you die without a will.  The answer depends on the way you own your assets, whether you have children and if the children are from more than one marriage. 
 
Some of your property might pass by contract, such as an I.R.A. or life insurance.  Other property you own might pass by survivorship, such as a house you own jointly with your spouse.  Your remaining property is subject to probate.  Under Florida law, if you do not decide who gets that property when you die, the law will make the choice for you.  Here are a few examples:

If you are married and have children only from that marriage:  Your spouse will receive the first $60,000, plus one-half of the balance of the probate assets if you die without a will. Your children will receive the remaining assets.  This means that your children are going to receive assets that your spouse might need for their support and education.
 
If you are married and have children from a current marriage and a prior marriage:  Your spouse will only receive one half of the probate assets if you die without a will.  Your children will receive the remaining assets.  This might allow money to pass to an adult child from a prior marriage who already received an education and deprive your spouse of money she needs for support and the education of your other children.
 
If you are single and have no children:  Your probate assets will pass to your parents equally or, if both of your parents are dead, to your brothers and sisters.  So, for example, if you wish to make a gift to a friend, fiancé or life partner when you die, you should make a will that includes such a gift.
 
If you do not have a will, consider consulting an attorney.  Hiring an attorney to prepare a simple will can cost anywhere from a few hundred dollars to a few thousand dollars and it will probably cost a lot less to do it now than it will to administer your estate later without a will. Many attorneys will even provide a free initial consultation and consider a fixed fee arrangement.  
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Deborah Doliner is an estate planning attorney located in Miami, Florida, and she practices in the areas of wills, trusts and estates.  You may reach Ms. Doliner at (305) 662-9997 or via e-mail at dolinerlaw@bellsouth.net.