What Happens When a Loved One Dies Intestate

Category: Probate Law

Florida Probate Lawyer  

Losing a loved one can be one of the hardest experiences of a person’s life. Many people try to take comfort in spending time with their family members or getting the closure that funeral services can provide, but if a loved one dies intestate (i.e., without leaving behind a will), even these small comforts can be strained. When there’s no will present, it often causes anxiety and conflict between relatives while drawing out the whole process and forcing you to continue to relive your loved one’s death.

Intestate Death in Florida

If a person dies without leaving behind a will and has claim to property in Florida, the decedent’s estate becomes a matter for the Florida court system – even if the person in question didn’t live in our state. Essentially, the state takes over and divides the assets according to Florida law, which will determine the things that the will should have. For instance, Florida probate law will determine rightful heirs and decide which parties will inherit the decedent’s properties.

Unfortunately, the manner in which the court divides assets is often not the manner in which the decedent would have chosen. This can be trying on the decedent’s family and can sometimes pave the way for disagreements or clashes at a time when you should be coming together.

To make matters worse, dividing assets is hardly ever a straightforward matter. Florida law states that in the case of an intestate death, the decedent’s remaining property will go to his or her children and surviving spouse. But that’s about as clear as it gets.

The Specifics of Florida Probate Law

Florida Probate Law

The one absolutely straightforward aspect of Florida probate law is in regards to property that was held in joint tenancy. If there was any property held in joint tenancy at the time of the decedent’s death, that property will go directly to the other owner.

All other property in question will be divided as the court sees fit, which can sometimes be confusing and unsatisfying for some family members.

An experienced probate lawyer will be able to explain the details of Florida probate law in greater detail, but a simple overview is as follows:

  • If the decedent leaves behind children and no spouse, the children will inherit all of the assets.
  • If the decedent leaves behind both a spouse and children, the court will consider a variety of factors to decide which assets each party will get. Some of these factors include:
    • The decedent’s date of death
    • The biological parenthood of the surviving spouse
    • Whether or not the spouse has other children from another partner
    • What type of property the estate is

But what if the decedent leaves no spouse or children behind, or what if there are other surviving family members who feel entitled to certain assets? What if there were stepchildren or ex-spouses in the picture?

Situations like this are not uncommon and require expertise to deal with.

What Can You Do to Prevent Conflict?

To avoid the exasperation of having to deal with probate court and legal battles, it’s best to draw up an estate plan and a will early in life.

However, if you find yourself in a position of dealing with an intestate death, working with knowledgeable lawyers can make the process easier and less stressful for everyone. If your loved one did not leave behind a will, contact the law offices of Wintter & Associates today to discuss your options and get things settled as promptly as possible.

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.