What happens if I die without a will?

May 16, 2022
What happens if I die without a will?

What happens if I die without a will?

If you die without a will in Florida, your estate will be distributed pursuant to Florida's law of intestate succession. However, only your "probate estate" will be distributed under the law. Some types of property are not included in the probate estate and will be distributed differently depending on who you have named as the beneficiary for these assets. Some examples of property not included in the probate estate are property in a living trust, life insurance proceeds (usually), funds in a retirement account like a 401k, funds in a payment on death or POD bank account, or property you own jointly with someone else.

“Your estate will be distributed pursuant to Florida's law of intestate succession.”

Who gets my property if I die without a will in Florida?

The rules of intestate succession depend on the structure of your family. Here is a helpful chart that explains who gets your probate assets if there is no will in Florida:

  1. If you have a spouse but no descendants:  Spouse gets everything
  2. If you have descendants but no spouse: Descendants get everything
  3. If you have a spouse and descendants with that spouse AND spouse has no other descendants:  Spouse gets everything.
  4. Same as #3 but your spouse has descendants from a previous relationship: Spouse gets 50% and your descendants gets 50%
  5. If you have a spouse and descendants from a prior relationship: Spouse gets 50% and your descendants get 50%
  6. If you have parents but no spouse or descendants: Parents get everything
  7. If you have siblings but no spouse, descendants, or parents: Siblings get everything.
  8. After that, Florida will look to see if there are grandparents, then aunts/uncles, then 1st cousins and it stops there.
  9. If there are no people from #9, and you had a spouse previously, then Florida will go through the same process to potentially give the property to your spouse's side of the family.
  10. If there is nobody, the property escheats to the State.

So, in Florida the key questions are whether you have a spouse or descendants either with that spouse or from a prior relationship. There are a lot of helpful charts on this subject. Another things you might be wondering is, who counts as a "child" or "descendant." Here is some information on that question:

  1. Adopted children count the same as biological children.
  2. Step children that were never adopted by you do not count.
  3. If your child was adopted by your new spouse (i.e., stepmother adopts children), this will not affect your child's ability to inherit from you.
  4. Your children born after your death count.
  5. For children born outside of marriage, a Court will have to establish paternity (before or after your death) or you need to acknowledge paternity in writing or they won't count.
  6. Grandchildren will receive a share only if their parent that is your descendant predeceases you.

The law surrounding the issue of who counts as a child for the purposes of intestate succession can be quite complex. An attorney can help navigate the issue and provide sound advice on who is entitled to what under Florida's laws of intestate succession. Some other interesting aspects of the intestate law in Florida are that "half" siblings will inherit property as if they are a "whole" sibling and immigration or citizenship status is not relevant.

A summary:

  • Who inherits your estate if you die without a will is determined by the Florida law of intestate succession.
  • Whether you have a spouse and/or surviving descendants are important factors.
  • The law tries to avoid property escheating to the state, but it does happen if there really are no relatives through the first cousin level.
  • Who qualifies as a "child" or "descendant" can be a complex issue of law.
  • Having a plan is usually better than having to rely on the intestate law.
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