A will assures the distribution of assets according to the decedent’s wishes and protects his family and loved ones from the legal entanglements and complications that typically arise during asset distribution. Parents with minors can make a will to nominate a legal guardian for their children and ensure they will be provided for after they’re gone.
If a person dies without a will in Florida, he or she is considered “intestate”. Contrary to the general belief, the assets of a person who dies intestate are almost never turned to the State of Florida – but the Florida Statutes do take care of distributing the wealth between the beneficiaries. In other words, the government decides what would be a fair allocation of your estate and, as you can expect, it almost never matches the preferences and interests of the deceased.
Is it important to take into account that intestate succession only applies to probate property. Pensions, retirement funds, insurance policies, payable-on-death bank accounts and any other property in joint ownership with designated beneficiaries are notpart of the probate property and will not be subject to the intestate succession. They are automatically distributed to the beneficiaries named by the decedent. The same applies for property transferred to a living trust, funds in IRA accounts and any other accounts with “payable on death” provisions.
Under the intestate succession law in Florida, the distribution of assets depends on whether or not the decedent has a surviving spouse, children, parents and other close relatives. Here are the most common cases:
- In case there is a surviving spouse, but no children, grandchildren or great-grandchildren, the spouse inherits everything.
- In case the decedent has children, grandchildren or great-grandchildren (lineal descendants) and all of them are also the spouse’s lineal descendants (and not from another marriage, for example), then the spouse receives $60,000 plus one half of the intestate estate. The other half goes to surviving descendants.
- If there is a surviving spouse, common lineal descendants and the spouse has descendants from another marriage, then the spouse receives one half of the probate estate, and the common descendants split the other half among themselves.
- If the decedent has no surviving spouse or lineal descendants, his parents inherit everything in the probate estate.
- If the decedent has no surviving spouse, lineal descendants or surviving parents, the entire probate estate goes to his siblings.
If the decedent dies without a will in Florida, his or her children will receive a share of the probate property. For a child to receive his share under the laws of intestacy, the State of Florida must consider him or her a legal heir. Here are the most common challenges:
- Adopted children. They are considered legal heirs under the Florida law and will automatically receive their intestate share.
- Stepchildren. If they are not legally adopted at the time of death, stepchildren will not be automatically considered in the intestate succession.
- Posthumous children. Children conceived by the decedent, but born after his death will be considered legal heirs and receive a share.
- Grandchildren. Grandchildren will receive a share if their parent has died before the decedent.
If you are the personal representative of an estate in Florida and the decedent left no will, you should seek the assistance of a board-certified estate planning lawyer who can guide you through the complicated maze of the Florida intestate laws.
About the Author
Christopher 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.