The Florida Legislature has been very active this past year in passing all sorts of major changes to existing Florida probate laws. The law makers have been doing this in several areas; however, one area of major change that is going to impact almost every Floridian involves the recent law changes involving wills and inheritance and what happens to your property after you die.
In other words, Florida inheritance laws and the Florida probate process have changed.
Here are two examples, which only go to emphasize the need for Floridians not to procrastinate, but to check with their estate planning attorney or will drafting lawyer now. Why? You may need to create or make some changes to your estate planning documents (wills, trusts, powers of attorney, etc.) now that these new Florida probate laws are in effect.
What Happens If You Don’t Change Your Estate Plan Documents?
What if you don’t make changes and you simply rely on the documents already in place? Based upon these new laws, lawsuits and litigation in the probate courts may be filed after you’ve passed away, challenging your estate plan or other transfers which may alter what you planned to happen with your assets.
1. Changes in Florida Law Regarding Surviving Spouses When There’s Not a Valid Will.
As of October 2, 2011, under new Florida law the surviving spouse gets 100% of the estate if there is no will (See Florida Statutes 732.102). Before the change, the surviving spouse got 50% of the estate and $60,000. This change applies if all the decedent’s kids were also the children of the surviving spouse. If there is one kid that isn’t the offspring of the decedent and his/her surviving spouse, then no new law change.
2. Court Can Reform an Unambiguous Will.
As of July 1, 2011, Florida probate judges can change how things will be divided up, even if the will itself in legally clear, i.e., “unambiguous” (see Florida Statutes 732.615). When someone challenges a will (in what is called a “will contest“) the new law allows that challenger to give the court evidence of what they believe to be the decedent’s intent – and if the probate court finds that this evidence is clear and convincing evidence that the challenger’s position is correct as to the decedent’s intent, then the judge can order a distribution of the estate that does not jive with clear language in the will.
These are just two examples; other changes to Florida probate laws are also on the books. It is very important for Floridians to check with their estate/probate attorney regarding the status of their estate planning in view of these new laws.
