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What Happens if You Don’t Have a Will in Florida?

Posted on: January 7th, 2013
Dying without a will is called died “intestate.” The Florida intestacy statute dictates how a person’s property and assets are distributed through probate. Whenever an individual passes without a will in Florida, the statute mandates:
  • The surviving spouse receives the entire estate when the decedent has no descendants.
  • The surviving spouse receives one half of the estate when there are living descendants of the decedent; the other half is distributed among the decedent’s surviving descendants.
  • The surviving descendants receive the entire estate of an individual who was not married at the time of death.
  • When a decedent has no surviving spouse or descendants, the entire estate is left to the decedent’s parents. If there are no surviving parents, the estate passes to all surviving siblings.
  • The estate of decedents with no surviving spouses, descendants, parents or siblings, will be distributed among relatives.
  • The estate will escheat (be passed) to the State of Florida for any person with no surviving heirs. Properties are sold and the proceeds are deposited into the State School Fund. There is a 10-year statute of limitations for an individual to make a claim of entitlement.
Florida Intestacy Laws

The estate of every person who passes without a valid will in Florida must pass through the probate process. Probate assets distributed through this process include: Property solely in the individual’s name or held as tenants in common, bank and investment accounts only in the name of the decedent, and life insurance policies, annuities and retirement funds payable to the estate.

Assets Not Distributed Through Probate in Florida
  • Property held in multiple names including the decedent as joint tenants with rights of survivorship
  • Property owned as tenants-by-the-entirety and the surviving spouse is on the title
  • Bank accounts in the name of the decedent that are payable on death to another individual
  • Life insurance, annuities and retirement funds payable to named beneficiaries.
The distribution of your assets is affected by failing to have a valid will. Intestacy can come in varying degrees. Without a will, intestacy is whole. If there is a will, but parts of it are determined to be invalid, then partial intestacy affects the distribution of the contested assets. 
Florida also has homestead laws. The Florida homestead exemption governs how a primary residence is distributed between a surviving spouse and minors. Benefits of the homestead laws: Real estate tax exemptions, protection from forced sales to satisfy creditors, and an option for a surviving spouse to potentially receive a life estate, with surviving children receiving the balance of shares. In order to qualify for the Florida homestead exemption, the property must be a primary residence, the individual must have legal or beneficial title of the home, and application for the homestead exemption must be made in person.

For your own peace of mind and the comfort of your loved ones, consult with one of our Miami estate planning lawyers. There are necessary documents and language required in order to execute a valid will in Florida. Whether you are starting a will, curious if your current will is valid, or are interested in amending your will, our Miami estate planning lawyers can help.
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