What Happens in Florida If You Die Without a Will - The Problem of No Last Will & Testament
Broward County Probate Lawyer - Florida Intestacy Laws
A Last Will and Testament is the most basic estate plan document. Its purpose is to memorialize and direct the testator's wishes as to what should happen to their property – land, houses, cars, boats, jewelry, etc. – after they die. Hopefully, a Last Will & Testament is just one of many documents that a testator has executed after creating an estate plan. Every estate plan should not only include a Will but consideration should be given to whether or not a Florida Trust is a good strategy, and whether or not directives related to financial matters (Durable Power of Attorney) and heath care decisions (Health Care Surrogate) should be created.
Most Baby Boomers Have Not Done Their End of Life Legal Plans
However, it is known that many, many Floridians have procrastinated on their estate planning and for these people. (In Fall 2011, one study revealed that 70% of Baby Boomers had not completed end of life documentation.)
If they die before they execute a valid Last Will and Testament, then their property will be distributed not according to their wishes but instead according to the laws of the State of Florida. They will have died intestate.
Florida residents who pass away without a valid will have died “intestate.”
When someone who lives in Florida (has legal residency here) dies and has no valid will, then the legal term for their situation is that they have died “intestate.” Special laws have been passed by the Florida legislature to deal with this situation. Together with these statutes, found in Florida Probate Code, Chapter 732, there are court opinions that help guide Florida probate courts in determining where that person’s (the “decedent’s”) assets will be transferred.
Even having a Last Will and Testament does not always guarantee that it will be respected after death. A Probate judge will review the document to make sure it complies with Florida law. If part of the will is unclear or does not meet the requirements of Florida law, then that part of the will can be considered invalid and the assets associated with invalid provision will instead transfer according to the Florida intestacy statutes (even though the law allows a judge to construe a will in a way that avoids intestacy).
Florida Law Decides What Property is Part of the Estate
When someone dies, Florida law immediately creates something called an “intestate estate” which holds the title to all the property held by that person, as well as taking on responsibility for all the debts of that person, immediately at the time of death. This way, property in Florida is never in limbo, without ownership; this is something that is extremely important for property issues such as clear title to real estate, automobiles, and investments.
Florida § 732.101(1) : “Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code.”
The time of death is also the exact moment according to Florida law when the “heirs” of the property have vested rights to the estate assets. (Florida Statute 732.101(2 ))
Florida Law Decides Who Gets the Estate Property – The State Decides Who the Heirs Are
The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate. As long as there is someone who meets the criteria for being an heir under the Florida Probate Code, then the estate’s representative will insure that the ownership of the intestacy estate’s assets are transferred to that heir. Without a living heir, then and only then, will the assets pass to the State of Florida. This is termed an “escheat” to the state, and after the property is transferred to state ownership, it is sold and the money put into the State School Fund. Florida Statute § 732.107.
Die without a will and have no legal heirs, then the State of Florida inherits your intestacy estate.
Usually, there are heirs to the estate. Spouses, children, other relatives. Things can get complicated when real life comes into play and things like pending divorce proceedings, adopted vs. biological children conflicts, and other issues compound the situation.
Who the “heirs” are and how the property is divided between them is the subject of a series of laws as well as many court opinions. For details, please review our chart on the Distribution of Property under Florida Probate Code.
Also Read: Intestate Probate Under Florida Law
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South Florida Probate Lawyers Helping People in Broward County and South Florida
At Hallandale Law, Florida probate attorneys represent clients both in estate planning and end of life documentation as well as assisting people who are, or who may be, heirs to an estate of someone who has died without a will. As experienced Florida estate planning lawyers, we provide clients involved in all kinds of probate and will controversies including will contests or claims to an intestate estate with concerned and zealous legal advice, counsel, and advocacy.
For those living in Florida year-round or just in the winter months, as well as those who have an interest in a Florida intestate estate but who live in another country or state, we can help them in the analysis and application of the Florida Probate Intestacy Laws as well as the related court opinions to Florida intestacy succession. Please feel free to contact our offices for a free initial consultation to see how our Florida lawyers may be able to help you.
Larry Tolchinsky is an experienced Florida Probate attorney with years of experience in representing clients and their claims based upon the Florida Probate Code, including the intestacy statutes and their related case law. Please feel free to contact South Florida probate attorney Larry Tolchinsky today for a free consultation.
Want to Know More?
To learn more from Larry and to see all of the probate matters he can help with, read his Florida Probate Lawyer page.
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