Our office will be closed on Thursday July 4th and Friday July 5th for the 4th of July Holiday.


Wills vs. Won’ts: Understanding the Impact of a Will By Matthew Shapiro, Daytona Beach Attorney

The passing of a loved one is always a difficult time, and dealing with the legal complexities that follow can make it even more challenging. One of the key aspects that often comes into play is whether the deceased died testate or intestate. These terms might sound technical, but understanding them can significantly ease the process of managing an estate, especially in Florida.

When someone dies testate, it means they have left behind a valid Last Will and Testament. This document outlines their wishes regarding the distribution of their assets, the guardianship of minor children, and other personal matters. Essentially, it serves as a guide for how their affairs should be handled after their death. A will can be a powerful tool, providing clarity and direction during a time of grief.

Conversely, dying intestate means that the person did not leave a valid will. This could be because they never created one, or the will they had was deemed invalid for some reason. When this happens, the distribution of their assets is determined by Florida’s intestacy laws, which are essentially a default set of rules for handling an estate when no specific instructions have been left.

So why is it important to understand these terms? The main reason lies in the differences in how the estate is managed and distributed in each scenario.

When a person dies testate, the probate process is guided by their will. This means that the executor, a person appointed in the will, will oversee the distribution of assets as per the deceased’s wishes. The will can specify who receives what, potentially including non-family members, friends, or charities, reflecting the unique relationships and values of the deceased. Additionally, a will can designate guardians for minor children, ensuring that they are cared for by trusted individuals.

On the other hand, if someone dies intestate in Florida, the state’s intestacy laws dictate how the estate is divided. Typically, this means that the estate is distributed among the closest relatives: a surviving spouse and children, if any. If there are no direct descendants, the estate might go to parents, siblings, or even more distant relatives. This process can sometimes lead to outcomes that the deceased might not have intended. For example, if someone has a partner to whom they are not legally married, that partner would not automatically inherit anything under intestate laws.

Having a Last Will and Testament is, therefore, a good idea for several reasons. First, it provides peace of mind, knowing that your assets will be distributed according to your wishes. This can prevent potential disputes among family members and ensure that your possessions go to the people or causes you care about most.

Second, a will allows you to appoint an executor, someone you trust to carry out your wishes and manage your estate responsibly. This person will have the authority to handle your affairs, pay off any debts, and distribute your assets according to your instructions. Without a will, the court will appoint someone to perform these duties, which might not be the person you would have chosen.

Third, for those with minor children, a will is crucial for designating guardianship. This ensures that your children are cared for by individuals you trust, providing them with stability and security during a difficult time.

In Florida, the probate process can be streamlined if a valid will is in place, potentially reducing the time and costs associated with administering the estate. A well-drafted will can minimize the legal complexities and help your loved ones focus on healing and remembrance rather than navigating a complicated legal process.

Understanding the difference between dying testate and intestate highlights the importance of having a Last Will and Testament. It’s about taking control of your legacy, providing for your loved ones, and ensuring that your final wishes are honored. While it may seem daunting to think about these matters, taking the time to create a will can provide clarity and peace of mind for both you and your family.