When a person dies with a valid last will and testament (“Will”) their Will is authenticated by a court through a process called probate, and the decedent’s assets are transferred in accordance with their Will and Florida law. But what happens when a person dies without a valid Will? The answer is Florida’s “Will Be Done” – that is, the laws of the state of Florida will apply to distribute the decedent’s assets through a process called intestate succession (a person who dies without a valid will is intestate). The probate court will apply the Florida statutes to distribute to the decedent’s heirs-at-law, i.e. those related to the decedent as described in the Florida statutes, as follows:
1. If the decedent was survived by a spouse and there is no surviving descendant of the decedent, then the surviving spouse receives the entire intestate estate.
2. If the decedent is survived by one or more descendants, who are all also descendants of the surviving spouse, and the surviving spouse has no other descendant, then the surviving spouse receives the entire intestate estate.
3. If the decedent is survived by a spouse and one or more descendants who are not lineal descendants of the surviving spouse, then the surviving spouse receives one half of the probate estate, and the lineal descendants share the remaining half.
4. If the decedent was unmarried or not survived by a spouse at death, but was survived by one or more descendants, then those descendants will share the entire probate estate.
5. If the decedent is not survived by a descendant or spouse, then the probate estate will be divided by the decedent’s father and mother equally, or to the survivor of them.
6. If the decedent is not survived by their father and mother, then the probate estate is shared by the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
7. If there is none of the foregoing, then the probate estate will be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, family in the order that is further described in the Florida statutes.
There are additional rights and considerations for spouses and descendants that must be taken into consideration, whether a decedent dies with or without a Will, that are beyond the scope of this article. Please note that the above discussion also does not apply to the decedent’s homestead property, which may have a different distribution outcome. You should consult your local probate attorney to discuss the probate process, and all of the options available during a probate administration of a loved one’s estate.
Sincerely,
Berlin Patten Ebling, PLLC
Article Authored by Pamela Hernandez, Esq. phernandez@berlinpatten.com
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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