In a perfect world, all adults would prepare a Last Will and Testament. Everyone should have a will, but, unfortunately, people die every day without having a valid will. What happens to your estate when you die without a will?

To die without a will is referred to as dying “intestate.”

If you don’t have a will, the state will write one for you.

When someone dies without a will in Florida, Florida’s laws of intestate succession effectively write a will for that person. The Florida intestate statutes set forth who will inherit from the estate as follows:

Section 732.102, Florida Statutes states that the intestate share of the surviving spouse is:

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

(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.

(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.

(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.

If there are beneficiaries other than the surviving spouse under the foregoing statutes then the other beneficiaries share of the estate is governed by Section 732.103, Florida Statutes. Under this statute the share of heirs other than the surviving spouse is determined as follows:

The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

Choose your own Personal Representative.

If you die without a will in Florida and formal probate administration is required, a Personal Representative (commonly known as an “Executor”) must be appointed. When you write a will, you designate a Personal Representative. Without a will, you do not get to choose your Personal Representative. This opens the door for disputes among the beneficiaries as to who should be appointed as Personal Representative.

Choose your own beneficiaries.

Another problem could arise from not having a valid Last Will and Testament. There may be heirs who cannot be located. There may be heirs who are not known to be alive or dead. There may even be heirs that you never met during your life that could inherit from your estate.

Choose a guardian for your minor children.

Parents with young children can name someone to serve as the guardian of their children. If a guardian is needed and there’s no will, the judge will have to appoint a guardian. Although the judge must act in the best interests of the children, the parents of the children know what is best for the children and who would be best to appoint as guardian. That is why it is best that the parents designate a guardian in their Last Will and Testament rather than letting a judge who doesn’t know the family decide.

Don’t let Florida law write your will for you!

At Trader Legal we have over 30 years of experience in handling estate planning and probate matters. Please give us a call today at (321) 723-6731 or email us at Rudi@TraderLegal.com or Kim@TraderLegal.com.



Disclaimer: The attorneys at Trader Legal provide the information contained on any and all pages of our website and blog as a courtesy to the public. You should not rely on the statements made herein made on this blog/ website in deciding how to proceed in your particular situation. This is not intended to constitute legal advice. Contact a lawyer in your jurisdiction if you have any questions pertaining to the information contained herein, you should contact an attorney in your jurisdiction who can provide legal advice pertaining to the particular facts of your case/ situation.