Don’t Procrastinate in Getting Your Will Written: What Does Florida Law Say About Who Gets What if You Die Without a Valid Will (You May Not Like It)?

Posted By on November 15, 2011

In Florida, just like every other state in the country, no one can die without title to their property being affected by state law.  It’s primarily to insure that land, stocks, bonds – things like that – are never without proper legal ownership. State laws also extend to personal property, too (the sofa, the jewelry, the paintings).

In Florida, you have two options.  You get to decide who gets what you own by preparing a valid, legal will or you can leave it to the Florida Legislature to decide for you.   Do you really want to trust Tallahassee with your property?  Probably not.

What Florida Law Will Do With Your Property if You Die Without a Will

There is Florida law that controls when someone dies without a will.  These are called the “intestacy statutes,” and you can read them here.

Under Florida law, someone who dies without a valid, legal will to dispose of their property is said to be “intestate.”  “Grandpa Joe died intestate,” for example.

First question that comes next is if Grandpa Joe has any property subject to probate.  (Not all property is subject to probate law: life insurance policies, for example, usually aren’t a probate asset.)

Second question: Does Grandpa Joe have any descendants – usually living blood or kin, i.e., family relatives? If not, then the State of Florida probably gets the stuff.  If there are, then they are considered “heirs” under Florida law.

Heirs at Law take under intestacy laws; beneficiaries take under valid wills.  Heirs and beneficiaries aren’t the same, though they are each inheriting property.

As for which relatives get what property, that all depends on how they were related to Grandpa Joe.  The Florida legislature has set up its own sort of family tree, to decide who gets what in the distribution of the decedent’s probate assets when he dies intestate.

Florida  Intestacy Distribution

Within Chapter 732 of the Florida Probate Code are several provisions that provide who gets what when a Floridian dies without a will.  For example, under Section 732.102, entitled “Spouse’s share of intestate estate,” the law states:

The intestate share of the surviving spouse is:

(1) If there is no surviving descendant of the decedent, the entire intestate estate.

1(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.

1(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.

1(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

What is a “descendant”? That is also defined in Florida’s probate code:

“Descendant” means a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs.

Florida law can get complicated quickly – and it can be unfair in its results.  Regardless of Grandpa Joe’s desire that his lady friend Betty get an inheritance, for instance, that will not happen without a valid will in place before Grandpa Joe’s demise.

It’s up to Grandpa Joe – and you – to make sure that your wishes are carried out after your death.  This includes not only your probate property, but your non-probate assets, and it also includes things like donating your organs (kidneys, etc.) if you would like to do so.

From our website:

Only assets owned by a decedent in his or her individual name require probate. Assets owned jointly as “tenants by the entirety” with a spouse, or “with rights of survivorship” with a spouse or any other person will pass to the surviving owner without probate. This is also true for assets with designated beneficiaries, such as life insurance, retirement accounts, annuities, and bank accounts and investments designated as “pay on death” or “in trust for” a named beneficiary. Assets held in trust will also avoid probate.

For those Probate estates not required to file a federal estate tax return, the final documents to close a probate are due within 12 months of the opening of the estate by the Court. An estate is opened upon the issuance of letters of administration by the Court.

For those estate required to file a federal estate tax return, Form 706, which is due nine months after death, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the court because often the IRS’ review and acceptance of the estate tax return are not completed within that period.

Probates that do not file a federal estate tax return and that do not involve any lawsuits, often close within five or six months. If you would like additional information about the Florida Probate Process, please feel free to read our blog, About Florida Probate. It addresses some of the most frequently asked questions about the Florida probate process.

Topics Related to Florida Probate Law include:

  • Trust Administration
  • Ancillary Probate
  • Will Contests
  • Post Mortem Estate Planning
  • IRS Estate Tax Filings
  • Undue Influence and Lack of Capacity claims
  • Probate Law
  • Wrongful Death Claims
  • Debts owed by and to the Decedent
  • Locating Heirs
  • Sale of Real Property
  • Management of Business Interests

If you do not have a valid Florida will, or if you are not sure if you need to make changes to your estate plan, then don’t wait.  Procrastination has been the reason for countless intestacy distributions in Florida.  Check with an experienced Florida probate lawyer and have your estate plan taken care of – it’s important.

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