For many decades, Florida law provided that the surviving spouse received half the estate* and the descendants shared the other half among themselves. This likely arose from public policy that both the surviving spouse and children needed assets to survive, but it also surprised many young couples. If a young father died without a will, half his estate would pass to his wife and the other half would go to a guardian for his minor children. Inheriting half the father’s assets at age 18 is probably not the best way to learn financial independence, so most parents made wills or held their assets in joint names as tenants by the entirety to avoid this result.

Along comes the 2011 Florida Legislature to the rescue. It enacted a law that amends the Florida Probate Code effective October 1, 2011 to provide that the entire estate passes to the surviving spouse if (a) the decedent died leaving a spouse and one or more descendants, (b) all of the decedent’s descendants are also the surviving spouse’s descendants, and (c) the surviving spouse has no other descendant.

It’s still a good idea for a young couple to make a will and to hold assets jointly as tenants by the entirety, but the new law will eliminate the surprise of a surviving spouse having to share assets with children when a spouse dies. It remains to be seen whether those children will be surprised to learn they get nothing.

*Actually, the law provides that, if all the decedent’s descendants are also descendants of the surviving spouse, then the spouse receives the first $60,000 before dividing the rest in half.

And for the probate court to decide, it needs to have all the wills that person ever made. So, if a rich uncle dies and leaves two wills in his desk at home, the person who finds them needs to file both of them with the probate court, and not just the one closer to date of death (and certainly not just the one that names that person).

In Florida we have a law that requires all wills to be filed within 10 days, and the law has teeth in it.

The answer is in the Florida Probate Code. If the Florida resident left a spouse and children, then they are the beneficiaries. If not, then it passes to the resident’s parents. If they are deceased, then it passes to siblings and descendants of deceased siblings.

The PR of an intestate estate is generally the spouse, but if none then the children and on down in the order of beneficiaries.

So, it’s always best to make a will while you’re alive and well so that the beneficiaries and PR are the persons you want them to be.

Should you tear up your old will when you sign a new one? It depends. Here are the general rules you need to think about if you’re a Florida resident:

1. You can sign a last will and testament that names who gets your estate when you die. If you die without signing a will, then your estate passes intestate, generally to your spouse and children, or your parents, or your siblings, as set out in the probate code. So, the first rule is to sign a last will and testament so you can choose who gets it.
2. If you sign a will, but no one can find the original of it when you die, then your estate will probably pass intestate, as if you had no will.So, the second rule is to keep the original of your last will and testament in a safe place where it will be found after you die.
3. If you signed a last will and testament and it is filed with the Clerk after you die, someone still might claim it is invalid because it was not signed with the proper formalities or was the result of undue influence or was invalid because you were incapacitated, etc. So, the third rule is to be sure to follow the formalities of making a will, which is why it is best for a lawyer to prepare it and supervise your signing it.
4. If someone successfully contests your will and you tore up your prior wills, then your estate would pass intestate, as if you had no will.

So, the fourth rule, and the answer to the title of this blog entry, is not to tear up your old will if you prefer it over your estate passing intestate.

So, the daughter appealed the case, and the appellate court ruled that it was error to enter the order without a hearing and without notice. Even though Florida Statutes Section 732.901 said that the Florida probate court could order production of the will “upon petition and notice”, the appellate court determined that there was no proof that the petition was actually received by the daughter and there was no hearing held on the petition. So, the appellate court reversed the probate court’s order and sent the case back to the probate court.

What’s interesting about all this is that the petition was filed in 2008, and the appellate court opinion was issued almost 3 years later. So, the lesson here is that, while the Florida probate law gives just 10 days for the person holding an original will of a Florida resident to file it after notice of death, it can take a lot longer than ten days to enforce that law.