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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, a part of Florida’s Probate Code, titled “Intestate Succession”, controls how any part of a decedent’s estate that is not effectively disposed of by a will passes to the decedent’s heirs.

In a nutshell, the Florida probate code determines which assets are to be included in the intestate estate and it determines which people are “heirs” of the decedent. To make things more challenging, periodically the Florida Legislature makes new laws, and Florida courts create opinions that have legal bearing on how Florida probate judges will rule in future cases.

Below is an outline of how assets are administered and distributed under the Florida Probate Code for an intestate estate:

1. Establish Who The Heirs Are Under the Florida Priorities

According to the intestate succession part of the Probate Code, when a decedent dies intestate, the primary consideration is given to any surviving spouse and then to the descendants of the decedent, as follows:

  • If the decedent is survived by a spouse and one or more lineal descendants who are descendants of both the decedent and the surviving spouse, and if the decedent had no other lineal descendant, then the surviving spouse is entitled to receive the entire probate estate.
  • If the decedent had a lineal descendant who was not a decedent of the surviving spouse (say a child from a prior marriage), then the spouse receives one-half of the probate estate and the non-related lineal descendants share the remaining half.
  • If there is no surviving spouse then the surviving lineal descendants will receive all of the decedent’s probate estate, divided according to the generational level of the decedent’s children.
  • If there is no spouse and no lineal descendants, then the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
  • If there is no spouse, no lineal descendants, and no siblings, then remote heirs receive the estate as described in a separate section of this part of the Probate Code.
  • If there are no living heirs, then the decedent’s assets escheat to the State of Florida. Meaning, the State of Florida receives all of the assets.

Note: There are several other sections in this part of Florida’s Probate Code on intestate succession. Those sections are:

732.103 Share of other heirs.
732.104 Inheritance per stirpes.
732.105 Half blood.
732.106 Afterborn heirs.
732.107 Escheat.
732.108 Adopted persons and persons born out of wedlock.
732.1081 Termination of parental rights.
732.109 Debts to decedent.
732.1101 Aliens.
732.111 Dower and curtesy abolished.

2. Commence an Intestate Probate Administration

When someone dies intestate, the probate process commences the same way a formal probate administration does by filing a petition for administration for an “intestate estate.” An intestate administration is substantially similar to a formal probate administration with the main difference being that Florida law dictates who receives the decedent’s assets.

Also, since there is no will to tell the court who the decedent nominates to act as personal representative, Florida’s Probate Code, statute 733.301, sets the preference for appointment of the P.R. as follows:

(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.

3. Determine Which Assets Are to be Part of The Intestate Probate Estate

Only those assets owned solely by the decedent at the time of his or her death. This can be assets titled in the decedent’s name alone, assets that were jointly held and the other joint tenant(s) died before the decedent, or assets that named the decedent as the beneficiary (like a life insurance policy). 

Note: 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. 

What about the family home?

Homestead property, may result in a life estate for minor children or for the surviving spouse in certain situations. This 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. 

Note: Situations regarding complicating factors such as adopted children, children born out of wedlock, and 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.

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Larry Tolchinsky is an experienced Florida 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 Larry Tolchinsky today for a free consultation.


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