“Quick” Q&A – What happens if I can’t find the Will?

In Common Florida Probate Questions by Long

Marie from Rochester, NY has turned her father’s house upside down and can’t find the Will.

“Quick” Question:

“My dad who ironically was an attorney, died and we can’t find his Will. We have no reason to believe that he wrote a Will other than the fact that he was an attorney and we find it hard to believe he didn’t prepare one. I, my biological sister and my adopted brother are the only beneficiaries. We’ve turned the house upside down and we just can’t find it! What happens in Florida probate if we can’t find the Will?”

“Quick” Answer:

For some reason, I’m hearing more of these stories about attorneys who didn’t leave Wills. It is strange, but not uncommon. First, check out my other post with tips for finding the will. Failing that, here’s the quick answer:

If the Will can’t be found, the decedent is presumed to have died “intestate” which means “without a Will.” It happens all the time and is not a problem so long as the the intestate heirs (heirs of the decedent pursuant to Florida Statutes) don’t quarrel over the statutory distribution of the estate and no one else tries to “prove” up what they believe to be the Last Will and Testament.

One of the other major disadvantages of not having the Will is that a judge may decide to require the petitioner or personal representative to post bond before administering the estate (bond – probate administration insurance).

Other inherent disadvantages include distributions to persons who are currently receiving government benefits such as Social Security disability. A lump sum distribution to such a person might disrupt their benefits to their dismay without a proper Will (or Trust.)