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.
- If you are currently married and never had children: Your surviving spouse is first in line to inherit the entire estate.
- If you are currently married and have children (any age) with that spouse: Your surviving spouse still inherits the entire estate.
- 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.
- 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
- 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:
- 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. - 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. - 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. - 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://www.garylandau.com/