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David Toback, Attorney at Law
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Make Sure Your Will Includes and Excludes Those Who You Want Inheriting (or Not Inheriting)

If you have assets, it is likely that you may want to make sure that members of your family, including your children, can receive those assets by inheritance when you pass. This may seem easy and obvious—and for smaller, biological families, it can be. But in reality, not all families are the same, which can present significant obstacles in the inheritance process.

The Intestate Process

When someone dies without a will, it is said they die intestate. Under Florida’s intestate statute, if someone dies without a will, the surviving spouse will inherit the assets of the deceased. If there is no surviving spouse, the deceased’s children will receive the assets. If there are none, then property would go to any surviving parents, and finally, to any siblings.

This can all be altered, of course, based on your wishes by having a will. One reason that many people choose a will is to make sure that non-biological children are taken care of.

By law, if you pass without a will, your stepchildren receive nothing; you are effectively leaving out stepchildren if you have no will. If you have a surviving spouse, your assets will go to him or her, and after he or she passes, the assets would go to the stepchildren. But should you pass with stepchildren and want to make sure property is left directly and immediately to them, a will is needed.

The same holds true for excluding biological children. Let’s say, for example, that an ex-spouse is raising a biological child, and because you don’t want your ex to have access to your inheritance (or wasting it), you don’t want your biological child directly inheriting your assets. In this case, you must make sure to specifically exclude the biological child in your will (although you can set up trusts and similar vehicles to make sure children will receive assets when they are adults, or establish a trustee to manage your inheritance instead of your ex spouse).

Other Situations That May Need a Will

Another issue common to many families are children born out of wedlock. Absent proof you are the biological parent, the child will not be considered a child for the purpose of intestate succession, absent an establishment of paternity while you are alive (actually, there are post-mortem ways to establish paternity, but those aren’t the cleanest and most pleasant ways of handling the situation).

You can do most anything you want with non-biological children in a will, as long as you do it specifically. Many form wills, or those sold by retailers, don’t have the specificity required to accomplish your goal.

And remember that it’s best not to create a will that omits anyone at the last minute. Those kinds of changes are often challenged in court in will contests, when children feel they have been wrongfully left out of an inheritance.

Don’t leave your sensitive family planning situations to novices, and don’t wait until the last minute. Make those decisions now, and get the information you need and the help to do it right. Contact Tampa will and probate attorney David Toback to discuss your needs.

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