What Happens if Someone Dies Without a Will in Florida?

Get The Legal Help You Need

By Gary M. Landau, Esq.

Call (954) 979-6566 Today
What Happens if Someone Dies Without Will in Florida? | Call (954) 979-6566

Dealing with the loss of a loved one is an incredibly difficult and emotional experience. When that loss is compounded by the absence of a Last Will and Testament the challenges can be compounded.

How will the person’s assets and home be distributed? Who is responsible for handling the estate while it is going through the legal probate process? Who will become guardians to their minor child if they have one?

These and many other questions arise in the aftermath of a person dying without a will.

In this article, we’ll provide a comprehensive overview of what happens if someone dies without a will in the state of Florida. From understanding the laws that govern the distribution of the person’s property to navigating the probate process, we’ll equip you with the knowledge you need to make informed decisions about yourself and your loved ones.

Continue reading to learn more, then contact us at (954) 979-6566 to schedule a free consultation if you need an attorney to probate an estate or to help you draft your own will and other estate-planning documents.

Probate in Florida without a Will

When someone dies without a valid will in Florida, their estate is known by the courts as being “intestate.” This is the legal term for dying without a will, and it results in the person’s assets being distributed according to the state’s specific intestacy laws. This may or may not reflect what the deceased person would have wanted.

Probate refers to the legal proceeding through which assets transfer from a person who has died to their heirs. In Florida, probate is overseen by the courts. The process of probate begins with identifying the decedent’s assets and paying valid outstanding debts and federal taxes. Ultimately, the remaining assets are distributed to the appropriate heirs, in this case according to Florida’s intestacy laws. (If the person has a valid will, assets are distributed as laid out in that document.)

Intestacy laws provide for a specific order of who inherits the person’s assets, prioritizing the closest living relatives. This typically starts with a surviving spouse and/or children; if there are none it involves other family members such as parents, siblings, or more distant relatives.

Understanding the basics of intestacy laws and probate in Florida without a will is the first step in navigating this situation.

Which Assets Are Subject to Probate?

When a resident of Florida dies without a will, not all of their assets are subject to the probate process. Certain types of property and accounts are passed to beneficiaries outside of the probate process.

Assets that are typically excluded from a probate estate include:

  • Property owned jointly with a surviving spouse or other individual. Depending on the type of deed, this property may automatically become fully owned by the surviving individual.
  • Bank and brokerage accounts jointly owned with another.
  • Retirement accounts or life insurance policies that have a designated beneficiary who is paid directly upon the death of the account holder.
  • Assets held in a living trust.

Many assets a person owns fall outside of these exclusions and are subject to probate. These include:

  • Real estate solely owned by an unmarried deceased individual  or owned with another person under certain types of deeds.
  • Bank accounts or other financial accounts that are solely owned by the decedent.
  • Valuable personal property like expensive vehicles, jewelry, or household items.

Working closely with experienced Florida estate lawyers can help ensure you properly identify the assets that must go through the probate process in order to be distributed to the person’s heirs.

How Are Assets Distributed if You Die Without a Will in Florida?

Based on Florida’s intestacy statutes, If the deceased person was married at the time of their death, their surviving spouse is typically first in line to inherit their assets. The spouse may receive all or a portion of the assets, depending on whether the person also has surviving children from another relationship.

If there is no living spouse, an intestate estate passes to the children, with each child receiving an equal percentage of the assets. Florida’s intestacy laws make no distinction between biological or adopted children when determining inheritance. All surviving children of the deceased receive an equal share of the intestate estate.

If there are no children, the order of inheritance is, in order: the decedent’s parents, followed by siblings, then more distant relatives such as grandparents, aunts and uncles, or cousins.

Our law firm has worked with several estates where a niece or cousin who had limited contact with their relative during their life ended up inheriting their property because no closer relative was alive.

Working with experienced Florida estate planning lawyers can help you fully understand how the intestacy statutes apply to your situation. Importantly, estate lawyers can also help you to create a legally valid will that honors your own wishes so your heirs will not have to deal with the prospect of your dying without a will. This is important for almost everyone, regardless of their age or the size of their estate.

Who Takes Care of a Minor Child if a Parent Dies Without a Will?

Documenting your careful selection of a guardian for a minor child is one of the most important reasons parents of young children should take the time to create a valid will.

When a person dies without a will, and the minor child’s other parent is not alive or fit to parent, the court appoints a guardian who will care for them. This guardianship determination is a separate legal process from the distribution of the deceased’s estate through probate.

Courts generally look to close relatives, such as grandparents, aunts and uncles, or adult siblings, as their first choice. Sometimes multiple relatives want to take in the child and an unpleasant legal battle ensues.

In the absence of a suitable family member, the court may appoint a professional guardian or even place the child temporarily in the foster care system.

Protect Your Heirs from Intestacy Laws by Drafting Your Own Last Will and Testament

The best way you and your loved ones can protect yourselves from being subject to the probate intestate laws is for everyone to draft a valid Florida will. If you already have a will, it’s smart to review the document every few years and update it as needed, especially if you marry, divorce, have children, or experience the death of a close relative.

Navigating the process of estate planning and probate can be complex, which is why consultation with an experienced Florida estate lawyers is crucial. These lawyers, who focus their practice on wills, trusts, and probates, can help ensure that your assets are passed to your heirs exactly the way you intend.

Quick Frequently Asked Questions

1. If I die without a Will, does my surviving spouse automatically inherit our family home?
Not necessarily. In Florida, the “Protected Homestead” (primary residence) is governed by specific constitutional rules. If the home was owned solely by the decedent and there are surviving children, the surviving spouse typically receives a Life Estate, meaning they can live there for the rest of their life, while the children receive the Remainder Interest. However, under Florida Statute § 732.401, the spouse can “elect” within six months to instead take a one-half undivided interest as a tenant in common with the children, which grants more flexibility for selling or managing the property.

2. What is a “Pretermitted Spouse,” and how do they inherit if they aren’t in a Will?
A Pretermitted Spouse is someone who married the decedent after the decedent had already signed a Will. Under Florida Statute § 732.301, the law presumes the omission was accidental. The new spouse is legally entitled to an “intestate share”—the same amount they would have received if there were no Will at all—unless a prenuptial agreement waived this right or the Will specifically states an intention to disinherit a future spouse.

3. If there is no Will, who pays for the probate attorney and court costs?
Generally, these costs are considered Class 1 Administrative Expenses under Florida Statute § 733.707. This means they are paid directly from the estate’s assets before any money is distributed to heirs or other creditors. Heirs usually do not have to pay out of pocket, but the total value of their inheritance will be reduced by these necessary legal and court fees.

4. Is there a strict deadline for creditors to claim money from an intestate estate?
Yes, and it is very strict. Once a Notice to Creditors is published in a local newspaper, unknown creditors have only three months to file a formal claim. For “reasonably ascertainable” creditors (like a known hospital or credit card company), the Personal Representative must serve them directly, giving them at least 30 days to respond. However, under Florida Statute § 733.710, there is an absolute two-year bar; no creditor can file a claim more than two years after the date of death, regardless of whether probate was ever opened.

5. Do “Half-Blood” siblings inherit the same amount as “Whole-Blood” siblings in Florida?
No. Florida is one of the few states that makes a legal distinction here. Under Florida Statute § 732.105, in an intestate estate, Half-Blood relatives (siblings who share only one parent with the decedent) inherit only half as much as Whole-Blood relatives. If all siblings are half-bloods, they each inherit equal shares, but if there is a mix, the whole-blood siblings receive double the portion of the half-blood siblings.

Looking for Florida Estate Planning Lawyers? Contact the LAW OFFICE OF GARY M. LANDAU, P.A., serving Coral Springs, Parkland, Fort Lauderdale, Boca Raton, Pompano Beach, Deerfield Beach & all of South Florida

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your estate planning or real estate needs in South 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.

Copyright © 2024. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

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/

0/5 (0 Reviews)

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.
Scroll to Top