Generally, all assets titled in joint names of the husband-and-wife will pass by survivorship and need not be probated. There may still be a number of reasons why you should see an estate planning attorney. What if both of you die in a common accident or one of you does not survive for a sufficient period of time after the other to make alternative arrangements. You should have a will or trust to spell out what happens under that circumstance.
In addition, joint ownership does not really protect you very well with respect to a potential mental incapacity of one of you. It could be very important to have a robust power of attorney executed subsequent to October 1, 2011, the effective date of Florida's most recent durable power of attorney statute. A power of attorney designates an agent to act for the principal and, if compliant with the statute, such designation is durable through a subsequent mental incapacity of the principal.
If everything is held as tenants by the entireties or joint tenants with rights of survivorship, everything will pass to the surviving spouse when the first spouse dies. However, if anything is titled only in the deceased spouse name, the laws of intestacy in Florida provide that all goes to the survivng spouse if, and only if, the decedent's surviving descendants are also descendants of the survivng spouse and the surviving spouse has no other descendant. Otherwise, the surviving spouse gets only one-half of the intestate estate.
However, there is also a $18,000.00 family allowance, Exempt property, and homestead property that enter into the mix. Accordingly, I think better practice would be to spend the small amount of money that it takes to properly plan your estate and make sure your wishes are carride out.
Christopher Q. Wintter
Wintter & Associates, P.A.
2239 Hollywood Boulevard, Hollywood, FL 33020
Phone: 954-920-7014 Fax: 954-920-7080
Historically, surviving spouses inherited all probate property. But there are exceptions if the decedent passed away after October 1, 2011. For instance, under Florida's intestacy law if the decedent has children from a previous marriage, then the surviving spouse inherits one-half of the decedent's estate. Similarly, if the decedent and surviving spouse have children in common and the surviving spouse also has children from a previous marriage, then the surviving spouse inherits one-half of the decedents estate.
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