Florida Elder Law Attorney Answers Today’s Elder Care Question: What is intestate law?

Question:  What is intestate law?

Answer:  Every state has an Intestate law but very few people understand it or even know that it exists.

It is usually used when a person dies without a will. But it can also be used when a person dies with a will, but the named beneficiaries have all predeceased the will maker.  In its simplest form, the state states who receives property that is the child or children of the deceased in equal shares.  If there are no children, they look to see who the parents of the deceased are.  Usually these parents are deceased also, but that leads to the deceased brothers and sisters.  If there are no brothers and sisters living, then we are lead to nieces and nephews who would share in the estate on an equal shares.  If there are no nieces and nephews, then we next look to aunts and uncles of the deceased and, of course, they are generally not living either, but that leads us to cousins and so on.  Once the statute has run out of relates under this scenario, the money goes to the individual’s state.  The state then holds on to the funds (property) for a period of time and if no qualified individual comes forth to claim the property, then the money defaults to the state.  The state holds the property in limbo for approximately 10 years before the default.

There can be minor variations of the intestacy statute from one state to another, but they will all follow the general pattern as outlined above.  There may be different treatment for stepchildren known as half-bloods in the law.  It is best practice to know what the intestacy statute in your state so that you can properly draft your own will.

The biggest problem with the intestacy statute is that the deceased’s property may wind up going to someone the deceased would not have left property to if he had his or her choice.  It is therefore, recommended that everyone have a current will where they can name their choices to receive their property.

Next, the intestacy statute would or could influence the court in picking a person to serve as guardians of any minor children of the deceased.  Therefore, it is particularly important for younger families with minor children to leave a current will behind where they express their wishes as to who they would choose an guardians for their minor children.  The court has no guidance from you without your expression of your wishes on this issue.  However, if your chosen guardian is found to be unfit by the court then your wishes may not be carried out depending upon the findings of fitness or lack of fitness of that individual.  It is always good to review your choices every five years or so and, also, should there be an unexpected change in the status of those that you name in your will then you can make those changes as necessary.

Finally, it is always recommended that each individual have his or her own will that will name the proper beneficiaries, name a proper guardian for any minor children, provide for the disinheritance of any children that you choose (if any) and name the persons that you wish to handle your estate upon your death.  This is the only legal way to properly address the issues that will become effective upon your death.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

An ElderCare Matters Partner
Ivan Michael Tucker, Esq.
Law Office of I. Michael Tucker, PLC
Altamone Springs, Florida
An ElderCare Matters Partner

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