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Dying Intestate (Without a Will) in Florida

 If, at the time you die, you have assets that don’t pass to others through joint tenancy, through beneficiary designations (such as those on retirement accounts and life insurance policies) or through a will or trust instrument, Florida’s intestacy laws will govern how those assets will pass.

Essentially, if you don’t have a will or trust prepared, the state of Florida writes one for you. This can mean that assets pass to relatives you don’t know well or don’t want to inherit from your estate. It also means your assets will need to pass through a probate court proceeding in order to be distributed.

Who Inherits Under Intestacy Laws?

Florida law (Florida Statutes Ch. 732) identifies the hierarchy for intestate inheritance as follows:

  • If you died leaving a spouse and no descendants, your spouse becomes your sole heir under the law. Similarly, if your spouse survived you and your only children – and your spouse’s only children – were children of both of you, your spouse will inherit everything.
  • If you died leaving children, but no spouse, your children will share your estate as equal heirs.
  • If you die without a spouse or descendants, your parents will inherit your estate, if they are living. If you had no living parents, then your siblings will inherit in equal shares. If you have no spouse, descendants, parents or siblings, your estate will go to the next closest relative(s). This may mean that assets pass to someone you have never met!

Things get more fractured under certain circumstances:

  • If you and your spouse had children together, but your spouse also has children from another relationship, your spouse will inherit one-half of your estate, and your descendants will take the other one-half.
  • The same outcome occurs if you had children from a previous relationship, but were survived by your spouse. Your spouse will take one-half, and your descendants will take the remaining one-half.

If you don’t have any living family members at the time of your death, your estate will pass to the family of your last deceased spouse, if applicable. In the event there are still no heirs identified, your estate would pass to the state of Florida through the laws of escheat.

Intestacy Succession and Probate

When someone in Florida dies intestate, assets owned in the deceased person’s name alone without beneficiaries, or owned with someone else as “tenants in common”, may need to go through a probate court proceeding. Probate is the process of administering a deceased person’s estate. When there was no will, probate assets will be administered and distributed to the heirs identified in Florida’s laws of intestate succession.

During probate for an intestate estate, the circuit court judge will appoint someone as the personal representative for the estate. If the deceased person was married, his or her spouse has first priority to be appointed as personal representative. If the deceased person was not married or if his or her spouse declines to serve, a majority in interest of the heirs can nominate someone to serve. If they are unable to come to agreement, the judge will appoint a Florida resident or professional fiduciary after holding a hearing. The personal representative is responsible for safeguarding estate assets, notifying interested parties and creditors, paying valid debts, final expenses and tax obligations from estate assets, and distributing remaining assets in accordance with the state’s intestacy laws as discussed more fully above.

Avoiding Intestacy Distributions

The good news is that it’s simple to avoid a situation where your estate has to go through Florida probate court, and through the state’s laws of intestate succession.

When you work with an estate planning attorney to have your will and/or trust instrument professionally drafted, you can be confident knowing that state intestacy laws should never apply in your case. You have control over whether, and how much, a specific person, group of people, or charitable organization will receive from your estate.

Choose the Judy-Ann Smith Law Firm

At the Judy-Ann Smith Law Firm in Jacksonville, we are passionate about helping people create thoughtful and deliberate estate plans to govern the management and distribution of assets during periods of lifetime incapacity – and at death.

If your loved one’s estate requires a probate proceeding, The Judy-Ann Smith Law Firm can help. We have experience helping make what can otherwise be a frustrating and confusing process easier.

To learn more and to schedule an initial consultation, contact us today at (904) 562-1369, or by email at [email protected]