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What happens if there is property that does not pass under a Will?

What happens if there is property that does not pass under a Will?

Full question:

My Father made a Will and it he he provided that certain property go to certain children. However, he did not list all of his property. The estate lawyer also tells me that there was not "residuary clause" in the Will and therefore some of his property that was not mentioned does not pass under the Will. What does that really mean? We all live in Florida.

Category: Wills and Estates
Subcategory: Intestacy
Date: 04/07/2025
State: Florida

Answer:

Usually a Will contains a residuary clause which provides that all other property not mentioned go to certain people. If there was no residuary clause the Will did not dispose of all of his property. This means that the property that does not pass under the Will passes instead under then Intestate laws of the State of Florida. If there was no spouse this would be the children who would all share equally. If a child is deceased but had children then those children would take the deceased child's share.

The Florida Probate Code provide in this regard the following:

732.101 Intestate estate.—
(1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code.

(2) The decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What are the three elements of undue influence?

The three elements of undue influence typically include: 1) the existence of a confidential relationship between the influencer and the testator; 2) the influencer's opportunity to exert influence over the testator; and 3) the actual exertion of influence that results in a change to the testator's intentions regarding their estate. In Florida, proving undue influence can invalidate a will if it is shown that the testator was coerced or manipulated into making decisions they would not have made independently.

What supersedes a will?

A will can be superseded by a later will or codicil that explicitly revokes the previous documents. Additionally, certain legal documents, such as trusts or beneficiary designations on accounts, may take precedence over a will regarding specific assets. In Florida, if a will conflicts with a validly executed trust, the trust's terms will govern the distribution of the assets held in the trust.

What constitutes undue influence in a will?

Undue influence in a will occurs when someone exerts pressure on the testator to change their estate plan against their true wishes. This can involve manipulation, coercion, or taking advantage of a position of trust. In Florida, proving undue influence requires showing that the influencer had a confidential relationship with the testator, had the opportunity to influence them, and that their influence directly affected the will's provisions.

Does a will override a property deed?

A will does not override a property deed. Property deeds specify the legal ownership of real estate. If a property is jointly owned or has a designated beneficiary, those arrangements will take precedence over the will. In Florida, if a property is transferred to a trust or has a beneficiary designation, it will not be affected by the terms of the will.

What is an example of a residuary clause in a will?

An example of a residuary clause in a will might state: 'I give all the rest, residue, and remainder of my estate, including any property not specifically mentioned, to my children in equal shares.' This clause ensures that any assets not specifically listed in the will are distributed according to the testator's wishes, preventing them from passing under intestacy laws.

How can you prove undue influence on a will?

To prove undue influence on a will, you must demonstrate the existence of a confidential relationship between the influencer and the testator, show that the influencer had the opportunity to exert influence, and provide evidence that this influence affected the testator's decisions. Witness testimony, medical records, and changes in the will that favor the influencer can support claims of undue influence in Florida.