What is a will and why do I need one?  What if I die and I didn’t have one?  Does the state take my stuff if I die without it?  What happens to my kids?  What is the difference between a will and a living will?  These questions are among the most popular asked by the public.  The answer to them can lead us to a  better understanding of the law and a better understanding of ourselves.  

 

A will is a formal and enforceable legal document that expresses our desire as to the destiny of our property when we die.  It can also express our intentions as to the future of our dependents. By its nature, it does not become effective until our death.  So, it is not something we “need,” as long as the definition of “need” has to do with our survival or our well-being. However, it appears that our humanity may dictate that our needs exceed even our own mortality.  We seem to have the need to affect the outcome of things even if we will not be present to experience it.  

 

Not long ago, I was watching a “Dodgeball” game between elementary students.  One boy launched the ball and hit another boy who could not get out of the way.  The boy being hit was able to retrieve the ball, but he was eliminated from the contest.  The other boys sought to receive the ball he was now carrying.  He looked around and picked a boy, who had been particularly effective and gave him the ball.  His clear intent was to continue to impact the outcome of the game even if he would not win himself.  Our need for a will is similar to the need of the boy, we need to impact the outcome of our property even when we will not be present. In this need is born the endowments given each year to many charitable organizations.  One such organization that caters to satisfying this desire is St. Jude Children’s Hospital. It has a dedicated page for this. In its page it asserts:  “Remembering St. Jude in your will is a meaningful way to help find cures and save children.” Fn. 1

 

We also seem to have the need to take care of our own.  We often worry about what will happen to those we leave behind.  Many AARP commercials for life insurance reflect the fear that our family will not survive well without us unless we make sure that we have taken care of them.  In its page for life insurance AARP has a quote from an elderly man who says: “I feel good knowing my family has protection if something should happen to me.”  Fn. 2 In the end, we are social animals who worry not only about ourselves but about the overall group.  So, your need for a will depends on whether or not you find yourself reflected here.

 

Dying without a will is called dying intestate.  Every year many die this way.  What happens to their stuff?  Florida, like every other state, has provisions for that contingency.  Chapter 732 of the Florida Statutes is dedicated to what happens to our stuff when we die without a will.  Generally speaking, our stuff goes to those closest to us in family relations, such as our spouses, our children, our parents and so on.  The states often go so far as to pretend that someone who has already died prior to the death of the person outlived them in order to find people to receive the property.  This is the case with Florida Statute Section 732.103(5).  Paraphrasing that statute, if you die after your spouse and no one is around to take your stuff, then the law assumes that your spouse outlived you, and the state will look to his family.  So, yes, your mother-in-law may claim your stuff if you die without a will. It is only when the state cannot find anyone that is related to you, that your stuff goes to the state.  This is called Escheat.

 

What happens to my children if I fail to appoint a successor guardian?  Well, in Florida the child’s other natural parent becomes the sole guardian under the law.  The real issue emerges when there is no one to take up this role.  Like dying without a will, the state also has provisions for the appointment of a guardian for minor children when both parents die.FT.3  Florida Statute Section 744.312 provides a scaffolding to be followed by the court in the appointment of a guardian.  It is important to know that the court gives preference to anyone who was nominated by the parent.  

 

What is a living will anyway? A living will is a legal document that expresses a person's wishes regarding life-prolonging procedures.  In Florida, it is governed by Florida Chapter 765.  It is a document whose legal importance comes into play while the person is still alive.  It tells a doctor to withhold or withdraw life-prolonging procedures in the event that a person has a terminal condition or has an end-stage condition, or is in a persistent vegetative state. So, it differs from a will because it is not about a person's property, it is about their health, and it does not come into effect at death, but it applies during life.  There are other more subtle distinctions. A living will is a document that once created should be readily available and shared for it to be effective.  A will, on the other hand, once it is created does not have to be published to anyone, not even those who will receives, under it.  It can be easily kept in a safe or held by a lawyer in his offices.  

 

The need to have a will depends on you.  If you need to impact what happens to your property or how well those that are left behind survive your death, then the answer is “yes,” but if those are questions that are not important to you then you really do not need a will.  Let the survivors figure it out.  Do you need a living will?  Again it depends on your feelings about living in a state other than what is considered to be normal.  If you do not want to survive, under those circumstances, then “yes” you need a living will.  

 

Fn. 1 https://www.stjude.org/give/legacy-giving/find-the-right-gift-for-you/wills-and-bequests.html

 

Fn. 2 https://www.aarp-lifeinsurance.com/Landing-Pages/TermInstantQuoteApply/? tntph=PPC8215&cid=1J6Z8C&mkwid=sUQ2M8sl8-dc_pcrid_48608488052_pmt_e_pkw_aarp%20life%20insurance

 

Fn. 3 “(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.”