Can Florida Claim Your Probate Assets If There’s No Will?

Can Florida Claim Your Probate Assets If There's No Will

As a gainfully employed adult in Florida, you have no doubt heard about the importance of creating a last will and testament. But do you know what happens if you die without a will in Florida?

Dying without a valid will is considered dying “intestate.” In this situation, Florida intestacy laws will determine how to distribute the decedent’s assets. This includes all property and assets that would have passed through their will, such as property solely in the individual’s name, single-owned bank and investment accounts, and life insurance policies, retirement funds, and annuities payable to the estate.

If you die intestate, your property and assets may be distributed to your surviving heirs through probate according to the following rules:

  • If you are married and survived by your spouse but have no children, grandchildren, or any other lineal descendants, your surviving spouse will inherit your whole estate.
  • Your surviving spouse will also receive your entire estate if you have descendants that are also descendants of the surviving spouse and neither you nor your spouse had any other children.
  • If you are survived by your spouse and descendants who are not descendants of your spouse, your spouse may receive half of your estate, while the other descendants will share the remaining half.
  • If you have children, grandchildren, or other lineal descendants, but no surviving spouse, your estate will be shared by your lineal descendants.
  • If there is no surviving spouse or lineal descendants, your estate will pass to lineal ascendants and collateral relatives. If your parents are alive, they are entitled to your estate. If not, your estate will pass to your siblings and their descendants.
  • If none of the aforementioned heirs survive, your estate will pass to the heirs of your grandparents, with one half going to your maternal relatives and the other half going to your paternal relatives. If you do not have relatives on one side, your estate will pass to the other side.

Florida Probate Lawyer

If you have any “half” relatives—such as a sister with whom you share a mother, but not a father—they will have the same rights to your property as they would if they were “whole.” Similarly, relatives that were conceived before your death will inherit as if they had been born while you were alive. If you have gotten divorced in the past, your former spouse will not have rights to inherit any of your estate, unless you are still in the process of divorcing at the time of your death.

But what happens if you have no living heirs? In this situation, your property and assets will be turned over to the state of Florida. If you are not survived by any of the family members as described above, your entire estate will escheat to the state. Property that escheats will be sold, and the sale of the proceeds will go to the Chief Financial Officer of the state and be deposited in the State School Fund.

Create a Will to Ensure Your Estate is Distributed According to Your Wishes

Create a Will to Ensure Your Estate is Distributed According to Your Wishes

When an individual dies intestate, the process of distributing his or her estate becomes complex, and the results are rarely completely in agreement with the decedent’s true wishes.

You can ensure that your property and assets go to the people you care about by creating a solid estate plan with the help of an experienced attorney. By setting up a will and other important estate planning documents, you can determine what property goes to whom, and under what circumstances.

Having a solid estate plan in place is particularly important if you do not have any surviving heirs. In your estate plan, you can arrange to have your property and assets go to friends, charities, or organizations you care about. However, this requires careful planning and formal documentation if you do not want your property to pass to the state.

If you want to be sure that your wishes are honored after your death and your loved ones provided for, consult with an experienced attorney to begin building a custom estate plan that suits your unique needs and interests. A knowledgeable estate planning attorney will be able to guide you through the process of creating a will and other important documents, providing you with the language and tools you need to ensure their strength and validity. With the counsel of an attorney, you can create an estate plan that honors your legacy and supports the people and causes you care about.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.