What Happens if Someone Dies Without a Will in Florida? You May Be Surprised

What happens if someone dies in Florida without a will? Fort Lauderdale probate litigation lawyer

A recent survey by the AARP revealed 60 percent of American adults do not have a will and are not planning for the end of their lives. Some of this is dictated by age. For instance, among those between ages 53 and 71, roughly 58 percent do have estate-planning documents. Among those older than 72, more than 80 percent have a will. Although most Americans live past the age of 40, there is never a guarantee.

That’s why our Fort Lauderdale probate attorneys want to stress the importance of a will for everyone over the age of 18 – even if you don’t think it’s not necessary because you’re married and assume all of it will go automatically to either your spouse or children.

The process of probate itself can consume a portion of those assets, and disputes that arise between potential heirs certainly will too.

How Florida Decedent’s Property Passes After Death With No Will

In the state of Florida, property that is inherited when you die with no will (called “intestate”) will depend on the kind of property you own at the time of your death.

Not all property has to go through the process of supervised probate. For example, one might inherit a life insurance policy if he or she is the beneficiary. They could be named as a remainderman on a real estate deed or an asset can be retitled in the name of a trust. Each one of these requires some degree of planning, though not necessarily a will.

A will becomes most relevant if an estate (the assets and debts one leaves behind) must go through probate. If there is no will, Florida will impose its own statutory rules.

So who gets the property? In short, the law will prioritize your surviving spouse and descendants, who can be considered any generational level down from you. There are several different scenarios. Among them:

  • Surviving spouse with no descendants: Everything goes to the spouse.
  • Surviving spouse and shared descendants: Everything goes to the spouse.
  • Surviving spouse and descendants of decedent but NOT the spouse: Half will go to the spouse and half to the descendants.
  • Surviving spouse and descendants, but where spouse also has their own children: Half will go to the spouse, half to decedent’s children, but none will be allotted for surviving spouse’s children.
  • Descendants but no surviving spouse: Descendants will inherit equal amounts or shares.
  • No descendants or surviving spouse: The estate in this case would be inherited first by the decedent’s parents. If neither parent is alive, it will go to one’s siblings. If no siblings, then nieces, nephews, etc.

It’s only in rare cases that the state will take your assets. In the event there is no spouse, children, parents or siblings, there is the possibility that even a remote relative could stake a claim to your estate.

There could also be special rules with regard to your home, if it’s homesteaded, as well as certain exempt personal property. A probate litigation attorney in Fort Lauderdale can explain more.

Surprises in Intestacy Estates

Something that occurs unexpectedly (or in some cases not in accordance with what decedent would have intended) is that even estranged spouses, adult children and other relatives can still collect on the inheritance – unless they’re expressly excluded in the will.

If you marry a person who already has children and those children are adults when your spouse dies, you will have to split your spouse’s estate 50-50 with those adult children – unless your spouse has a will that expressly says otherwise.

Another important scenario to note is that in probate law, common law marriage is not a thing. So if you live with someone – even if you held yourselves out to be husband-and-wife – but never formally married, you will get nothing of your beloved’s estate if he or dies. (This is true at least per intestate laws, though again, there could be exceptions for jointly held property.)

Finally, many people today take on the responsibility of raising the child of a loved one, someone who is a grandchild, a cousin, friend or even stepchild. You may be closer to that child and that child may need the money more. However, unless they are written into your will, they will not inherit from your estate over your blood relatives.

Our Fort Lauderdale probate litigation lawyers can help if you need a will prepared or if a loved one recently died with no will in Florida.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Consumer Pamphlet: Probate In Florida, The Florida Bar

More Blog Entries:

Florida Probate Litigation Statute of Limitations May Not Be Settled, March 13, 2019, Fort Lauderdale Probate Litigation Lawyer Blog

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