When a Loved One Dies
It is often said that it is a bad idea to make ‘big’ decisions within the first year after a loved one dies. Unfortunately, that is often easier said than done. Clients typically have important questions that need answers – and those answers can prompt actions that need to be taken.
For example, in our first conversation with a surviving spouse or child, we typically discuss questions such as the following:
- ‘My father died. He owned a bank account. Can I close the account?’ The answer to this question depends on how the bank account was titled – that is, whose name is on the account. For example:
- If the account is titled only in the name of the individual who died (known as the ‘decedent’), then probate court administration will be required before the account can be closed or distributed.
- If the account is titled jointly with the decedent and a spouse, child, or other survivor, then the survivor may be able to close the account so long as the account was held with ‘rights of survivorship’. If the account was not held with ‘rights of survivorship’, then probate court administration will be required.
- If the account is titled in a trust, corporation, or other legal entity, then the legal entity would have control of the account. The survivor would then need to prove that they are authorized by the legal entity to close the account.
- ‘My husband died without a Will. He had a bank account that was only in his name. Who gets his money?’ Florida law provides a default set of rules for individuals who die ‘intestate’ – that is, without a Will. These default rules determine who will receive the intestate individual’s estate. The result varies based on the family circumstances of the individual. For example:
- If an individual dies leaving a spouse but no children, the spouse will inherit the individual’s estate).
- If the individual dies leaving a spouse and children, then the spouse may be required to split the estate with the children (unless all of the deceased individual’s children are also children of the surviving spouse, and neither spouse has other children).
- If the individual dies without a spouse or children, the law provides for the individual’s closest relatives (that is, closest in relation – not geographically) to receive the estate.
- ‘My uncle died and he left a Will. But I think he was forced to sign the Will by my cousin. My cousin stands to receive everything under the Will.’ Sadly, this situation occurs. Florida law permits any interested person to file a legal action to contest a Will based on undue influence, incapacity, and other grounds. If you believe you may be involved in a situation like this, it is important to call an attorney quickly. As time passes, memories fade and evidence becomes more difficult to produce. In addition, the law provides only a limited amount of time for you to file this type of legal action.
- ‘My wife just died. My stepson says he is going to take control of her estate. Can he do that?’ The person appointed to administer a Florida probate estate is known as the ‘Personal Representative’ (many states use the term ‘executor’, which means the same thing). The probate court determines who will serve as the Personal Representative. If the decedent left a Will nominating someone to serve, this nomination is generally followed by the court. If the decedent did not leave a Will, the Florida statutes provide default rules to determine who will serve. As you might expect, the surviving spouse is generally favored to serve. A child of the decedent has a lesser priority. In fact, if there is no surviving spouse, the estate heirs may decide (by majority vote) to appoint someone other than a child to serve.
These are just a few of the types of questions that are commonly faced after the death of a loved one. Obviously, the answers given are based on general principles – and the details matter a great deal. If you have questions of your own, please give us a call at 239.593.7900.
