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Intestate Probate in Florida

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Florida Intestate Probate

Distribution of Property under the Florida Probate Code

Who Gets My Property If I Die Without a Will?

In Florida, anyone who is a legal resident of the State of Florida who passes away without a valid Last Will and Testament is said to have died “intestate.” When someone dies intestate, the probate process commences with the filing of a petition for administration for an “intestate estate.”

The Florida legislature has passed a series of laws that determine which assets are to be included in the intestate estate, and have written laws that determine which people will receive these assets as inheritance as “heirs” of the person who has died. To make things more challenging, periodically the Florida Legislature makes new intestacy distribution laws as well as Florida courts issuing case opinions which have legal bearing on how Florida probate judges will rule in future cases.

For reference and without providing legal opinion, we are providing the following information to help those interested in intestacy distribution in Florida as well as those who want to try and answer the question “who gets my property if I die without a will?”

The Distribution of Property under Florida Probate Code When There is No Valid Will


1. Decide What Property Will Be In the Estate To Be Distributed.

First, the Court will determine what assets are to be considered as property of the intestacy estate. Homestead property, for example, may result in a life estate for minor children or for the surviving spouse in certain situations – which means the property can not be immediately distributed to other heirs. There are other special rules regarding the home of the decedent and their spouse at the time of their death. Additionally, some personal property is exempt from being included in the intestacy estate, and the law also excludes a certain sum as a statutory allowance for the widow (or widower) and family members (children, aging parents) who were financially dependent upon the decedent. Finally, any life insurance policies, individual retirement accounts (IRAs), or annuities payable to a specific beneficiary other than the estate itself is not a probate asset along with any property that has been placed into a Trust prior to the decedent’s death.

2.Determine What Is Left to Be Distributed After Debts, Taxes, Creditor Claims Etc. Have Been Paid

Second, determine what will be distributed to the heirs (a/k/a/ as the “residue” of the estate.) These are the net assets left in the estate after creditors’ claims, income taxes, expenses, fees, and other debts have all been paid.

3.Establish Who The Heirs Are Under the Florida Priorities

Third, the heirs will receive the residue estate according to the following priorities set up in the Florida Probate Code. If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:

  • Survived by his or her spouse but left no living, lineal descendants: the surviving spouse receives everything.

What is a “descendant”? In Florida a “descendant” is a person in any generational level down the descending line from the decedent. This can be children, grandchildren, great-grandchildren, etc.

  • Date of death on or before October 1, 2011: Survived by their spouse and left one or more lineal descendants who are descendants of both husband and wife, then surviving spouse is entitled to the first $60,000 and one-half of the remaining residue, and the descendants share the other half.
  • Date of death on or after October 2, 2011: Survived by their spouse and one or more lineal descendants who are descendants of both husband and wife, and if the decedent had no other lineal descendant, then the surviving spouse is entitled to receive the entire residue. If the decedent had a lineal descendant who was not a decedent of their spouse (say a child from a prior marriage), then spouse receives one-half of the probate estate and the non-related lineal descendants share the remaining half.
  • No spouse: Surviving lineal descendants will receive all of the decedent’s probate estate, divided according to generational level of the decedent’s children.
  • No spouse and no lineal descendants: Decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
  • No spouse, no lineal descendants, and no siblings: More remote heirs receive the estate as described in the Probate Code.
  • No living heirs: escheats to the State of Florida.

In October 2011, new laws went into effect here in Florida regarding how the intestacy estate would be passed to a surviving spouse.

Situations regarding complicating factors such as adopted children, children born out of wedlock, spouses not yet divorced but in the process of divorcing, are provided for both by statute and by case law. This synopsis cannot and does not attempt to provide the answers for every possible intestate scenario.

Also Read: What Happens in Florida If You Die Without a Will – The Problem of No Last Will & Testament (or an Invalid Will)


Get A Free Case Evaluation – Call (954) 458-8655

Florida probate lawyer Larry Tolchinsky is an experienced Florida estate planning and probate attorney with years of experience dealing with the Florida Probate Code, its intestacy statutes, and their related case law. Please feel free to contact South Florida probate attorney Larry Tolchinsky today for a free consultation.


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