There are many misconceptions about the law in general and about estate planning in particular. There are also many opportunities to use the law to protect those we love when it comes to helping families navigate life and the legal processes that happen after the death or disability of a loved one. The best option is to plan ahead, reports the article “I’m dead, now what? Myths about deaths in Georgia” from the Cherokee Tribune & Ledger-News. While the article addresses Georgia law, here are the top four myths about what happens when someone dies in Florida (other states may have different laws):
Myth 1. Even if I have no Will, my spouse gets everything. Maybe, maybe not. While you may want your spouse to get everything, if there’s no Will, then Florida’s laws will determine who gets what. Under Florida law, if neither you nor your spouse have any children from previous relationships, then, yes, your spouse will inherit everything. But if either of you have other children outside the marriage, then your children will inherit half of your estate and your spouse will inherit half of your estate. That might not be what you were expecting.
Having a Will allows you to choose who inherits what.
Myth 2: A Will means there’s no need for probate court. Wrong! Having a Will doesn’t mean you avoid probate court and the legal process known as probate. A Will isn’t legally effective until the nominated executor/personal representative presents your Will to the probate court and the court accepts the Will and declares it to be valid. The probate process can be costly and last nine months or longer in Florida. Going through the probate process does have other some downsides if there’s a disgruntled family member or a need for privacy: The probate process creates a public record and information can and often is obtained by family members. To avoid making your life public, you may want to consider an estate plan that includes trusts, which don’t go through the probate process and don’t become public records.
Myth 3: If I don’t have a Will, the state will take it all. It’s very rare that any state will take everything, even if there’s no Will. Florida only does that if absolutely no family members can be found, or if the person who died received Medicaid benefits while alive and left no spouse. More likely? A distant family member will be entitled to inherit. Again, the law varies by state, so check with an experienced estate planning lawyer in your state.
Myth 4: The family gets stuck with the debts. Sort of. The deceased person’s debts don’t have to be paid by a family member if they were not a joint borrower or otherwise legally obligated to pay the debt. However, the debts are paid by the deceased’s estate before anything can be distributed to the beneficiaries. Therefore, the family members will inherit less, but it’s not coming directly out of their own pockets. The debts of the deceased are to be paid by whatever assets he or she owned at the time of death. If there’s not enough in the estate, the family is not obligated to pay the debt.
What you think you know about estate planning can hurt you and your family. An easy way to prevent this is to meet with an experienced estate planning attorney and make a plan that will distribute your assets according to your wishes.
Reference: Cherokee Tribune & Ledger-News (Feb. 1, 2020) “I’m dead, now what? Myths about deaths in Georgia”
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