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.
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.
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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
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