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June 2, 2015 | General |

Can Florida Claim Your Probate Assets If There’s No Will?

As a gainfully employed adult in Florida, you have no doubt heard about the importance of creating a last will and testament. But do you know what happens if you die without a will in Florida?

Dying without a valid will is considered dying “intestate.” In this situation, Florida intestacy laws will determine how to distribute the decedent’s assets. This includes all property and assets that would have passed through their will, such as property solely in the individual’s name, solely-owned bank and investment accounts, and life insurance policies, retirement funds, and annuities without a beneficiary.

If you die intestate, your property and assets may be distributed to your surviving heirs through probate according to the following rules:

If you are married and survived by your spouse but have no children, grandchildren, or any other lineal descendants, your surviving spouse will inherit your entire estate.

Your surviving spouse will also receive your entire estate if you and your spouse had children together  and neither you nor your spouse had any other children.

If you are survived by your spouse and children or grandchildren who are not also children or grandchildren of your spouse, your spouse may receive half of your estate, while your children share the remaining half.  

  • If you have been divorced, your former spouse will not inherit any of your estate.  However, if you are separated or have filed for divorce and the marriage has not been judicially dissolved or invalidated, then your spouse will inherit as discussed.  

If you have children, grandchildren, or other lineal descendants, but no surviving spouse, your estate will be shared by your lineal descendants.

If there is no surviving spouse or lineal descendants, your estate will pass to collateral relatives such as parents and siblings. If your parents are alive, they are entitled to your estate. If not, your estate will pass to your siblings and the children of any siblings who predeceased you.  If you have siblings who are “half-siblings”, i.e. you share only a mother or a father, then they will inherit half as much of your estate as a whole-blood siblings, i.e. with whom you have both parents in common. If your siblings are all half-siblings then they each receive a full share.

If none of the aforementioned heirs survive, your estate will pass to the heirs of your grandparents, with one half going to your maternal relatives and the other half going to your paternal relatives. If you do not have relatives on one side, your estate will pass to the other side.

  • If you have no surviving relatives, your estate will pass to the heirs of your last deceased spouse.

In addition to the above rules regarding intestate succession, also keep in mind that relatives that were conceived before your death but born after will inherit as if they had been born while you were alive.  

But what happens if you have no living heirs? In this situation, your property and assets will be turned over to the state of Florida. If you are not survived by any of the family members as described above, your entire estate will escheat to the state. Property that escheats will be sold, and the sale of the proceeds will go to the Chief Financial Officer of the state and be deposited in the State School Fund.

Create a Will to Ensure Your Estate is Distributed According to Your Wishes

When an individual dies intestate, the process of distributing his or her estate can be complex and the results are rarely completely in agreement with the decedent’s true wishes.

You can ensure that your property and assets go to the people you care most about by creating a solid estate plan with the help of an experienced attorney.

Your estate plan becomes particularly important if you do not have any surviving heirs or if you do not want your surviving heirs to inherit your estate. Under those circumstances, you can arrange to have your property and assets go to friends, charities, or organizations you care about.

If you want to be sure that your wishes are honored after your death and your loved ones are provided for, consult with an experienced attorney to begin building a custom estate plan that suits your unique needs and interests. She or he will be able to guide you through the process of creating a will and other important documents. With the help of an attorney, you can create an estate plan that honors your legacy and supports the people and causes you care about.

About the Author:

Christopher Q. Wintter is the founder of Wintter Law and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell.  

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