What You Need to Know About Florida Intestacy Law

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By Gary M. Landau, Esq.

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What You Need to Know About Florida Intestacy Law | Call (954) 979-6566

Passing away without having a last will and testament can create unintended consequences for loved ones. In Florida, when someone dies without a will, state law dictates who receives their assets; a process known as intestate succession. The situation can create confusion and disputes among potential heirs, as they realize you may have wanted certain assets–a home, a bank account, sentimental objects–to go elsewhere. Even worse, when minor children are involved, the deceased person is deprived of the ability to direct who takes over their care, since wills specify your preferred of a legal guardian.

How does Florida intestacy law work?

This blog, from a longtime Florida probate attorney, explains what happens if you die intestate, or without a legally valid will. At the Law Office of Gary M. Landau, P.A. in Coral Springs, Florida, we guide clients statewide through estate planning and probate matters, including understanding intestacy laws.

With more than 25 years experience in estate administration and estate planning, we are clear about the need to inform Florida residents about how the state’s intestacy law could impact you or those you love, and why a legally valid will keeps the state from dictating how your property and assets are distributed after your death. We feel strongly that that’s something you, and only you, should decide.

What Is Intestacy Law?

Intestacy involves the statutes that apply when someone dies without a legally valid will–whether because they never drafted a will or because family members can’t find it. These laws dictate how a deceased person’s estate is passed to surviving family members.

If you die intestate in Florida, the probate courts follow a specific order of who inherits, based on their relationship to you. In some cases, the dictates of the law may not be what the person would have wanted.

(See our blog, What Happens When Someone Dies Without a Will in Florida?)

How Florida’s Intestacy Laws Work

In some ways, the order of inheritance in intestacy law makes sense, since they give  assets to the closest living relative(s). But no court could understand the nuances in each person’s life circumstances.

Here are some scenarios of how intestacy law handles a probate.

  1. If you are currently married and never had children: Your surviving spouse is first in line to inherit the entire estate.
  2. If you are currently married and have children (any age) with that spouse: Your surviving spouse still inherits the entire estate.
  3. If you are currently married and have children from a prior relationship: Your surviving spouse inherits half of the estate and the children divide the remaining half equally.
  4. If you have no spouse or children: Assets pass to other blood relatives in the following order, based on who remains alive:
    • Parents
    • Siblings
    • Nieces and nephews
    • Extended family such as aunts, uncles, and cousins
  5. If no blood relatives can be found: Your entire estate passes into the coffers of the state of Florida, and no one you know inherits anything.

A Florida Probate Lawyer Explains Intestacy & Estate Administration

Probate is the name for the process of legally distributing a deceased person’s assets. In Florida, probates are supervised by a probate judge at the probate court, generally in the county where the deceased person lived.

When no will is submitted as a probate is opened, the court relies on intestacy statutes to determine the division of money, property, and personal possessions.

Why Probate Can Be Problematic in Intestacy Cases

Potential for disputes or hard feelings. Without a will to clarify your intentions, disagreements and resentments can arise among surviving family members. For instance, romantic partners, stepchildren, or other non-biological relatives you are close with are excluded from inheriting. In some cases this leads to hard feelings; in others, to drawn-out legal battles.

Court supervision. Especially when a person does not have a living spouse or child, courts want to make sure someone deserving isn’t erroneously disinherited. Sometimes the court asks beneficiaries to track down and present old divorce certificates or death certificates or even to hire private investigators to prove, for example, that an estranged parent is in fact not alive. This can take time and significant resources.

Additional costs. In cases where various steps are needed, additional probate costs, including out of pocket expenses and attorney fees, may result.

Out-of-state heirs. If an heir resides outside Florida or, especially, out of the U.S., gathering documents and submitting legal filings can be complex, adding another layer to the probate process. That’s why when wills are drafted, the person named as the personal representative (in charge of administering the probate) is generally a Florida resident.

(Learn more about personal representatives in our blog, What It Means to Be the PR in Someone’s Will.) 

Court selection of the guardian for minor children. An important reason people with children under 18 should draft a will is to name who they want to be their child’s legal guardian should both parents pass away. Without a will, courts are left to make this determination.

Why a Legally Valid Will Is a Must

Working with a knowledgeable probate lawyer, you can easily create a legally valid will. We always tell clients this is one of the best gifts you leave your family. Establishing a will as part of a comprehensive estate planning process means Florida’s intestacy laws are not triggered. You control your estate’s distribution, aligning it with your wishes.

(See our blog, The Consequences of Dying Without a Will and Other Legal Documents in Florida.)

Benefits of Having a Will

You select all beneficiaries. In your written will you specify exactly who inherits your assets. For example, you can leave your assets to all your children equally or can leave more to those who due to their life circumstances need it most. You can also leave heirlooms to specific family members or friends, and provide for stepchildren, charities, or friends who do not inherit under Florida’s intestacy statutes.

Simplifies the probate. Because you designate a personal representative in your will, that person can immediately begin the process of opening the probate and moving the process forward. When a court has to identify and name a PR, the process slows.

Protects step-relatives. Aside from a spouse, intestacy laws focus exclusively on blood relatives. This means blended families, step-children and -grandchildren, and even longtime romantic partners or friends are not provided for. A will lets you leave what you want to those excluded by intestacy laws.

Upholds your wishes. Whether it’s leaving assets to non-relatives or charities or designating guardians for minor children, a will gives you complete control over where your estate goes and who watches your beloved children following your death.

Avoids family disputes. Having clear instructions via a legally valid will reduces conflicts among potential heirs, saving families unnecessary stress during an emotional time.

Practical Advice for Florida Residents from a Coral Springs Probate Lawyer

Now that you recognize the importance of drafting a will as part of your comprehensive estate planning under Florida law, our boutique law firm recommend the following steps:

  1. Create or Update Your Will As Soon as Possible
    A wills and trust attorney helps you draft a will that meets legal requirements under Florida law. Married couples must each have their own will, one for each spouse. Even people whose assets are in a revocable trust need a will to cover outside assets.
  2. Don’t Forget Other End-of-Life Documents
    In addition to a will, everyone should also have a living will and healthcare surrogacy to inform medical professionals the kinds of heroic interventions you do or don’t want at the end of your life. In addition, our law firm has created a non-legal document, My Last Emotional Wishes, to describe other end of life aspirations. You can find that free document on our law firm’s home page.
  3. Name Beneficiary Designations for Other Assets
    Some assets fall outside of probate, including life insurance policies, retirement accounts, and payable-on-death accounts. Be sure each of those accounts has a named  beneficiary to ensure those assets pass to those you intend them to.
  4. Review Regularly
    Life situations change. Whether it’s marriage, divorce, having a child, or acquiring significant assets, you should review and update your will and estate plans whenever major changes happen in your life, as well as every five or so years.

(See our blog, Common Mistakes in Wills: Lessons Learned from Recent Probate Cases in Florida.)

Contact the Law Office of GARY M. LANDAU, P.A. in Coral Springs, Serving Clients Throughout Florida

Florida’s intestacy laws were created to help families where someone has passed away without a will. But skilled probate lawyers recognize that their distribution rules don’t always align with someone’s personal circumstances. Dying without a will can create challenges for families, especially in cases of blended families, out-of-state heirs, or families with unique circumstances. Drafting a will with the help of an experienced attorney is quick and easy, so there’s no need for this to happen.

Have you been searching online for a “probate attorney,” “estate lawyers near me,” or a “probate lawyer?”

With more than 25 years of experience in our practice areas and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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