JACKSONVILLE ESTATE LAW FIRM SERVING, DUVAL, CLAY, NASSAU, ST. JOHNS, FLAGLER AND BAKER COUNTIES
Inheritance in Florida refers to the rights of individuals to receive money and property upon the death of a Florida citizen. Under Florida probate law, also referred to as Florida estate law, there are many valuable property rights created for beneficiaries, heirs, next of kin, widows, and loved ones.
The Florida probate code, as well as Florida statutes, as well as decisions by appellate courts, serve as the foundation of Florida inheritance law. Commonly this law is called “Surviving Spouse Law”. It is these statutes and these cases that give beneficiaries and family members their rights to inherit money and property from a Florida citizen who has passed away.
Florida inheritance law may be considered as being in two camps. One camp includes all the rights of family members created by Florida probate law. Secondly, Florida inheritances are created by the intent of a Florida resident who decides to leave money or property to someone when he or she dies. The Florida resident, may intend to leave you a bank account by a right of survivorship, or may intend to leave you half of their estate, under a Florida will, or under a Florida revocable trust.
Florida inheritance law creates very valuable property rights for a widow or widower. If you are a surviving husband or a surviving wife, often referred to as a “surviving spouse”, of a now deceased Florida citizen, you have many valuable property rights to bank accounts, brokerage accounts, a family residence, retirement accounts, personal property, and cash. That’s because Florida inheritance law views the widow or widower as a very important part of the Florida family. So important, that Florida surviving spouse law wants to protect the widow or widower. A widow, in Florida, has a right to a “family allowance” during the probate process or the estate administration process. This may be up to $18,000. In addition, a Florida surviving spouse, has certain rights to personal property, and an automobile of their husband or wife who just passed away.
In addition, if you are named as a joint tenant, with a right of survivorship, with your late spouse on a bank account, a brokerage account, or other property, you have certain legal presumptions and preferences under Florida inheritance law. If you own Florida real estate, or other property, as joint tenants, with your spouse, you may have an interest in what is referred to under Florida inheritance law as “tenancy by the entirety” or as “tenants by the entirety.”
What does that mean? If you are a surviving spouse, a widow or widower, and your husband or wife just passed away in Florida, you need to know all of your rights under Florida inheritance law. Why? Because all of the valuable property rights, all the Florida inheritance rights, which a surviving spouse is entitled to during the Florida probate process, and during the Florida estate administration process, may not be readily apparent.
A special caution should be given to stepmothers, and stepfathers. If your husband or wife just died, and that husband or wife was not your first spouse, your spouse’s children from a prior relationship may not want you to receive all of the property which you are entitled to under Florida inheritance law.
Probate litigation, and estate disputes, between stepchildren and second or third spouses of a Florida resident who has just passed away are very common. Because widows or widowers in Florida have such great rights, this can create a financial tension between you and your stepchildren. That’s why probate lawyers, lawyers in Florida who write wills and trusts, want to carefully plan your estate so that in inheritance war is not started when one of you dies.
Now is the time to talk about some principles of Florida inheritance law which are very, very important. First of all, no one is entitled to an inheritance. A family member, an only son or daughter, next of kin, heir, grandchild, or descendent is not guaranteed an inheritance under Florida inheritance law. There are two general exceptions to this rule. One, family members do have inheritance rights to a Florida estate if a Florida citizen dies without a will (Intestate). Two, one generally cannot disinherit a wife or husband. Absent those two exceptions, a Florida resident may generally leave his or her property to anyone they want. If he or she wants to leave all their money to a neighbor, to a charity, to a trust for their cat or dog, or a best friend, instead of their adult children, only child, or only brother, they can do it. The only requirements under Florida inheritance law are that the Florida citizen or resident be competent and that they knew what they were doing, and free from undue influence or some type of force. Any will, trust, ruminating, if which is caused or created by undue influence is invalid. The surviving wife or husband, may give up their inheritance rights by consenting to do so. This is often done by signing a valid prenuptial agreement, post nuptial agreement, or other marital agreement or contract. In other words, Florida inheritance rights may be altered by written consent or agreement. But be cautious! Many times “deals,” agreements, or waivers of inheritance rights, need to be in writing, and may need to be witnessed. There may be other requirements under Florida law which may include disclosure.
What if someone promises to leave an inheritance to you? But the will leaves everything to someone else? Do you inherit? A further thought on inheritance law in Florida: oral promises to leave in inheritance are not valid. For someone to leave an inheritance under Florida law, they must do so by some written form: under a last will, under a Florida revocable trust, or by creating, through written documents, a joint Florida bank account, or by naming someone as a beneficiary of some life insurance policy or on an annuity.
If a Florida citizen dies without a will (Intestate), and he or she has property which is left in his or her Florida estate, that property is said to be distributed to family members by the process, or the law, known as “intestacy.” All “intestacy” means is that a dead Florida citizen’s property will be distributed to family members according to a scheme created by the Florida legislature, and found in the Florida probate code. Intestacy, in Florida, only happens, and comes into play, when someone dies without a will. Family members, sometimes referred to as “heirs” or “next of kin”, have valuable inheritance rights and property rights under Florida inheritance law. Surviving spouses, heirs, and minor children who survive a dead Florida resident have certain rights to a family residence which is referred to as Florida “homestead.” Florida Homestead is often the subject of dispute and litigation. A surviving spouse and minor children, have important, invaluable, rights to the family residence in Florida. In addition, a family residence in Florida, a Homestead, may not be deeded, or transferred, or conveyed, except under certain circumstances, when the owner of the Florida Homestead has a spouse or minor children. Put another way, under Florida inheritance law, someone who owns a family residence cannot just leave it to anyone they want when they die. A surviving spouse or minor children have rights under Florida inheritance law. Many times, to clear up this issue, during the probate process, a court or probate procedure starts with the filing of a probate document known as a “petition to determine Homestead.” Such a probate document is an attempt to identify what family members have a right to a Florida family residence, and to determine whether the family residence in Florida has certain protections of Florida Homestead.
There is a very recent change to Florida inheritance law that helps a Florida surviving spouse if his or her wife or husband died with a Florida Homestead, and it was not left properly. The surviving spouse, who may only have a limited right to live in a Homestead during his or her life, may now take steps to convert that Florida “life estate”. This new Florida surviving spouse law is a very valuable development and property right for a surviving spouse.
Perhaps the most common rights under Florida inheritance law include the right to inherit money and property from a deceased Florida resident under his or her will (Testate) or by gift.
A Florida resident may dispose of his or her property under a Florida will by leaving their property directly to the chosen beneficiaries. The named beneficiary under the will becomes entitled to receive that inheritance, providing the inheritance still exists. So, for example, if you are left a piece of real estate under a last will, but the will maker sells the real estate prior to dying, you do not inherit. That’s because the real estate no longer exists. The real estate, under Florida inheritance law, is said to be “adeemed”. What you’re dealing with under Florida or inheritance law, then, is what is referred to as ademption. There are, of course, exceptions to this rule of redemption, and lost inheritances. A Florida resident may also leave you an inheritance under his or her revocable trust, also referred to sometimes as a Florida living trust. A Florida revocable trust and a Florida living trust are the same thing. They are trusts created by a Florida resident which may be changed or revoked at any time while the Florida resident is alive, and competent. Once the Florida resident dies, his or her revocable trust becomes irrevocable. The assets and money in the Florida revocable trust, which is now a Florida irrevocable trust, will be distributed, or not distributed according to the terms of the Florida trust.
A Florida resident may also leave an inheritance by creating a beneficiary designation, by making a gift, or by creating joint accounts. Naming a beneficiary on an annuity, a Florida bank account, creating a joint account with a right of survivorship, or designating the beneficiary of a retirement account, life insurance policy or IRA can be a simple, and effective, way to leave an inheritance. When beneficiaries are properly named, Florida inheritance law states that the named beneficiary automatically receives that inheritance, by “operation of law.”
It is important for all beneficiaries, family members, and heirs to understand that their inheritance rights under Florida inheritance law are subject to the Florida probate code, and the Florida probate rules. What does this mean? It means that before a beneficiary may inherit from the State of Florida, Florida revocable trust, or will, all of the expenses of administration must be paid, and all the debts of the deceased Florida resident must also be paid. If, for example the dead Florida resident owed more money than he or she was worth, nobody inherits. Remember, that part of the probate administration process in Florida includes paying the dead Florida residents final federal income taxes, as well as his or her debts: credit cards, mortgages, outstanding real estate taxes, electric bills, loans, etc. Florida inheritance law will not let a family member or a beneficiary take prior to a valid creditor.
A very important related area of the Florida probate process is what is referred to as the rights of creditors of the dead Florida resident. If the dead Florida resident owed someone money, that someone is referred to as an “estate creditor.” Creditors need to comply with the rules under the Florida probate code and the Florida probate rules to make sure that they get paid. If they don’t, or if they miss a deadline, they may never be paid.
The question now is: Do you have a valid Last Will & Testament? Do you need a Revocable Trust? What are your needs? How do you protect yourself from creditors?
Today is the day to take action, you never know what the future may hold. Call Daniel M. Copeland, Attorney at Law, P.A. today at 904.482-0616, we are here to help guide you through the process.
Please note, all information contained herein is provided for general informational purposes only. The information herein is not intended as legal advice and should not be relied upon as such. Different factual scenarios may yield different results. In addition, several other factors must be considered in each individual case, and those factors can only be ascertained by speaking directly with an attorney.
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