What Happens When You Don’t Have An Estate Plan

What Happens If You Don’t Have Estate Planning When You Die

An estate plan is essential for people who want to control what happens to themselves in their final days and their assets after their death. But Florida residents die without an estate plan every day. When that happens, the Florida Probate Court applies the state’s intestacy laws to distribute the deceased person’s assets. These laws provide a default structure for paying your final expenses and dividing up your assets among your next of kin, should you die with no estate plan.

If you don’t have estate planning when you die, anyone close to you can file a petition in the Florida Probate Court to administer your estate. The Court will then:

Designate a personal representative (often the person who filed the petition)

Issue letters of administration, allowing the personal representative to take legal actions on behalf of the estate

Oversee the creation of an inventory of your assets

Identify the dependents and descendants who will receive your assets

Ensure that your assets are divided according to the state’s intestacy laws

Resolve disputes between creditors and those who would inherit your assets

The same basic process applies after you execute a Last Will and Testament. However, in that case, your wishes control, rather than the state’s default laws. Without an estate plan, your family will need to accept a standard distribution of assets, and that can lead to inefficient and costly distributions of assets.

Many people put off estate planning because they believe they don’t own enough to make it worthwhile, or assume they will get around to it eventually. The reality is that you never know when you will need to use your estate plan. Understanding what happens when you don’t have an estate plan can help you better plan for the future, and avoid the risks of sending your family to probate court.

The Down-Side to Having No Estate Plan

Relying on the default intestacy laws may sound fine if you intend your property to pass to your close relatives anyway, but the truth is there is a downside to avoiding estate planning. Intestate succession laws are rigid, awarding each heir a set percentage of your assets based on their legal relationship to you. This can create problems when:

Important Assets Must be Sold to Afford the Distribution

You may have one or two assets that hold substantial value compared to your other accounts, especially if you are a homeowner. Because intestate succession is based solely on a percent of the total value of the property in your estate, if you have no estate plan your personal representative may need to liquidate your most important assets just to satisfy the statute.

The Wrong Person is Named Personal Representative or Guardian of Dependents

An estate plan allows you to do more than designate beneficiaries. You can also select who you want to administer your estate, or care for your minor children as guardian. Without this guidance, the Probate Court may select someone you would not want handling your affairs, simply because they were the one to file the death certificate and ask for the job. While the probate court has the discretion to select a different personal representative, if no other person comes forward in time, the Court may not be aware of reasons the petitioner is not the best candidate.

Intended Beneficiaries Are Not Legally Related to You

You may well have people you want to provide for after death that do not fit within the structure of intestate succession. Step-children, life partners, friends, and charitable organizations are all excluded from receiving inheritance when there is no estate plan. There can also be complications when a child’s paternity is questioned, or when it is difficult to locate legal heirs. In the most severe cases, your estate may even escheat directly to the state, rather than any of your friends or loved ones.

Family Members Dispute Distributions

An estate plan assures your loved ones that the Court is doing what you think is best. Without the benefit of your last wishes, your family members may be more likely to contest the distribution of assets. This probate litigation will drive up the cost of estate administration, delay the distribution of your assets, and create tension between your family members.

Estate Taxes and Probate Fees Increase

The larger an intestate estate, the more likely it is to trigger estate taxes and higher probate court fees. While there is no Florida estate tax, federal estate taxes apply any time a person’s total probate estate exceeds $13.61 million (as of 2024). In addition, if you hold property in other states, those properties may be subject to state estate taxes. In addition, the larger an estate is, the higher the probate court fees that apply to the administration of the case. This is why many people with substantial assets use estate planning to reduce the size of their probate estate and implement strategies to offset or avoid estate taxes.

Why Estate Planning is Important Before Your Death

Estate planning isn’t just about your finances, though. It can also help you get medical care and pay for expenses if you become seriously ill or injured, or even while recovering from surgery. A robust estate plan includes more than just a Will. It will also provide documents that can provide for you medically and financially, should you become incapacitated, including:

Durable Power of Attorney, allowing someone to make financial decisions and transactions on your behalf

Health Care Surrogate designations and HIPAA confidentiality waivers, giving someone the authority to talk to doctors about your health and make medical decisions when you cannot

Living Will, guiding medical choices to align with your moral choices and priorities.

These are important parts of any estate plan because when an emergency arises, they trigger automatically, should you become incapacitated. Without these documents, your family will lose precious time as they petition the Court to name a guardian and conservator to make those decisions for you.

Get Started Creating an Estate Plan

At Harrison Estate Law, we can help you avoid intestate succession by building a complete estate plan that provides for the people you value most. We are happy to help you develop a plan for your end-of-life care and your assets, and protect your family from unnecessary taxes and costs. Please contact us online or via email or call 352-306-3261 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call. We are now available for extended evening and weekend appointments.

Estate and Probate Rights of Unmarried Partners

Florida probate law contains several protections for married couples, including laws to prevent a spouse from losing their home or property after their spouse’s death, built in assumptions about spouses’ authority to make decisions on their husband or wife’s behalf, and their shared responsibility to care for children in common. Essentially, a married couple is treated as a single entity under the law.

However, unmarried partners don’t have access to these same protections. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.

There are many reasons why you and your partner may choose to cohabitate, rather than get married:

One or both partners may still be legally married to a former spouse

Marriage may terminate an existing spousal support award

A would-be spouse’s income may exclude a partner from receiving means-tested state benefits, like Social Security benefits or Medicaid

You may have a religious or philosophical objection to marriage

Your family may object to your choice of partner

Marrying may cut you off from receiving benefits from a Family Incentive Trust

Living together is growing increasingly socially acceptable. That means more and more Florida families are being built without the foundation of a legal marriage. To make up for the lack of protections that come with the word “spouse,” unmarried couples should make estate planning a priority.

Many Florida families don’t take the time to set out their wishes for their final care, or what should happen to their property when they die. They trust that doctors and the courts will defer to their partner if something happens to them. However, when unmarried partners take this same relaxed approach to estate planning it can create delays and unintended consequences for the couple and any children they may have in common.

Estate Planning Tips for Unmarried Couples

The single biggest estate planning tip for unmarried couples and partners is to start as soon as possible. Once you move in together it may be time to start considering whether to include your partner in your estate and end-of-life plan. Here are some considerations for unmarried couples’ estate plans.

Jointly Titled Property Gives Automatic Access to Funds Without Probate

One of the easiest forms of estate planning for unmarried partners involves how they purchase and title property in the first place. Homes, cars, and bank accounts can all be held jointly with another person, regardless of whether that person is a spouse. When one title owner dies, jointly held property automatically reverts to the other title owners. There are many reasons why partners may choose not to combine their assets. However, if you are trying to protect your partner in the event of your death, one quick and easy way to do so is to add their name to the title of your home or bank account.

Wills for Unmarried Partners Protects Grieving Survivors from Eviction

Unmarried partners do not gain a surviving spouse’s elective share in their partners’ assets after their death. These elective shares are designed to make sure that a widow or widower isn’t displaced or cut off from all their assets during their grief. However, unmarried partners don’t have the same protections. Instead, they will be dependent on the language in their late partner’s estate plan. If you want your unmarried spouse to keep possession of your home, furniture, or other property when you die, you will need to write a Will to give that property to your partner directly. Otherwise, it could pass to your parents, siblings, or even cousins, leaving your live-in partner without a place to live.

Estate Planning Gives Unmarried Couples Power to Make Decisions And Pay Bills

It is important to remember that estate planning isn’t just about what happens to your property after death. It also addresses your final wishes regarding your own healthcare, expenses, and living arrangements. Many unmarried people trust their partners with these difficult decisions. However, if you become incapacitated without an estate plan in place, the Florida probate court is more likely to appoint a blood relative or private company to act as your legal guardian.

Fortunately, the courts must generally defer to your guardian designation. Probate judges will also look for less restrictive alternatives, such as powers of attorney or patient advocate designations. If you have prepared these documents naming your unmarried partner as your intended decision maker, the court will generally honor those requests and appoint your unmarried partner instead.

HIPAA Releases Keep Partners Informed

Relatedly, federal privacy laws prevent doctors and hospitals from talking about a patient’s condition with their unmarried partners. Unless you have signed a HIPAA privacy waiver permitting your partner to receive your medical information, they may not be informed about your condition, or the options available for your treatment.

Family Planning Documents for Unmarried Parents

Similarly, if you have children (or pets) when you pass away, the Florida courts may overlook your unmarried spouse as a potential guardian or caregiver. No amount of family planning will replace a family court custody order placing a child with a parent. However, if your child does not have a second legal parent – such as in cases of adoption or where the child was conceived to unmarried parents – you may need to complete a guardianship designation indicating you want your children placed with your partner if you died.

Get Help with Estate Planning for Unmarried Couples

Estate planning is essential to protect unmarried couples from losing their connection to one another, and their shared property when they become incapacitated or die. At Harrison Estate Law, P.A., our experienced estate and probate team can help you create an estate plan that will protect you, your partner, and your children. We will help make sure you have all the documents in place so that doctors, family members, and the Florida courts give your life partner the respect they deserve. Contact us here or call 352-306-3261 to get help today.