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Not Everyone Needs a Will in Florida

Not Everyone Needs a Will in Florida
November 3, 2022

Planning for the future can sometimes be stressful and confusing. No one wants to think about what will happen when they’re gone. The reality is, though, estate planning is necessary to ensure your wishes are carried out for your loved ones and for your assets.

An elder needs lawyer in Florida can help you with any estate planning needs you have, including wills, trusts, Medicaid planning, and more.

But does everyone in Florida need a will?

The answer that question is – if we're taking it quite literally – no. Not everyone in Florida needs a will. The types of Floridians who don't need a will are going to be those who are willing to take some risk and have limited assets.

What do I mean by that? If you have a bank account and that's all you have, you can name a Pay on Death beneficiary. After you pass away, that person will get whatever's left in your bank account. It doesn't matter if there's a will or not and you don't have to go to court to get access to that money. And that's fine.

Same thing with, if you just have like a 401 K, an IRA, or brokerage account, these financial accounts will allow you to name a Pay on Death beneficiary. Those assets will go to that person and there will be no need for a probate and no need for a will.

However, you are taking on some risk by doing that. If the person who you wish to inherit from these financial accounts, have pre deceased you, or they shouldn't be receiving money because they are on a needs-based government program like SSI or Medicaid, then going to court might be necessary. The banks and the financial institutions can only go so deep, meaning if the Pay on Death beneficiaries are not alive, you're going back to court. In that case, you will want a will, or better yet, you want a revocable trust to avoid having to go to court in the first place.

There's another asset that doesn't necessarily require a will, which is your house or real estate. In Florida, we have a concept called a ladybird deed, or you can put a house in a trust. Either way, the real estate will pass to whoever the deed says the house should go to, and same thing with the revocable living trust.

So, there are people who just may own a home and may have a bank account, and they may – if they are okay with the risk that the person who is supposed to inherit doesn't pre deceased them – then those people, in fact, don't need a will. However, we of course, encourage everybody to have a will. Whether you have a trust or you only have these very limited assets, the will gives the judge at the probate court instruction for who receives your property should the Pay on Death beneficiary not survive you. A will provides for these multiple contingencies.

And better yet, you don't want to rely on your will at all in the first place. You want to rely on a trust. The trust can help you avoid having to go to probate court or avoid your loved ones having to go to probate court, and get your assets to where you want them to go and provide for these multiple contingencies.

If someone still has pre deceased you, then what happens with their share? Maybe it goes to their children and maybe it goes to somebody else. Having a will and a revocable living trust allows you to remain in control of where things go.

If you don't have a will or you don't have a trust and the people who you want to initially get this property passed away before you, now you're relying on the state and a judge. We have what's called intestate laws. If you don't have a will, there's an order of people who are entitled to your stuff. If you haven't indicated otherwise through a will or revocable living trust, maybe that means assets won’t go to where you want it to go.

So again, that's what estate planning really is all about. It's empowering you to make sure that the people who you want to make decisions for you – if you're not able to make decisions – are able to do so. You get to choose, not a judge. And also, who gets your stuff? What's the most efficient way to get your assets to the people you want to inherit from you after your passing.

If you are anywhere in Florida and you want to talk to Elder Needs Law about Medicaid planning, estate planning, probate, probate avoidance, or any other planning needs, please give us a call and schedule a consultation.


Find more helpful resources:

●     Can you probate a will without a lawyer in Florida?

●     Estate planning strategies: Keeping your money in your family

●     10 reasons you need a will even if you don't think you're rich enough

●     Is a handwritten will valid? Everything you need to know about holographic wills

●     You need more than a will to address all of your end of life decisions

Jason Neufeld is the Founder and Managing Partner of Elder Needs Law, a Florida estate planning and elder law firm he created in 2017. With more than 15 years of experience practicing law, he represents clients in a wide range of legal matters, including Medicaid planning, estate planning, elder law, probate, Medicare, and life insurance.

Jason received his Juris Doctor from the University of Miami — School of Law and is a member of the Florida Bar and the Broward County Bar Association. He has received numerous accolades for his work, including being named a Rising Star and Super Lawyer by Super Lawyers and among the Florida Legal Elite by Florida Trend in 2024.

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