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Florida residents, and those who own real estate or other property in Florida, can leave their assets to whomever they wish by creating wills or trusts, changing the titling of assets to add one or more owners as joint tenants, or by naming individuals or charitable organizations as beneficiaries, to inherit directly when the account owner dies. However, when someone dies without leaving a valid will, they are said to die “intestate.”
This means that assets that would otherwise have been subject to the distribution directions outlined in a will must instead pass through the Florida probate process, and be distributed as specified in Florida’s intestacy laws. These laws are designed to pass assets to the deceased person’s heirs (also referred to as ‘next of kin.’)
When someone dies without a valid will, only their “probate assets” are subject to intestacy laws. Probate assets are those things the deceased person owned in his or her name alone at the time of death, without one or more joint owners and without beneficiaries.
So, a bank account in the deceased person’s name alone, without a “pay on death” beneficiary designation would pass according to Florida intestacy laws. However, an IRA or life insurance proceeds would pass contractually to those named as beneficiaries, outside of probate.
Florida statutes use a flowchart of sorts to identify next of kin, for purposes of intestate succession. Whether a relative has the right to inherit anything or not depends on their relationship to the deceased person.
The term “descendants,” as used in the law and as described below, can be the deceased person’s children, grandchildren, and more remote descendants. However, grandchildren and more remote descendants generally will not inherit unless their parent predeceased the person whose estate is being probated. This is referred to as “per stirpes” or inheritance “by right of representation.”
Legally-adopted descendants are included automatically by law, but foster children, step-children, and wards typically do not meet the definition of “descendants.” Descendants conceived before the person’s death but not born until afterward are still considered descendants, for purposes of intestate succession.
First, if the deceased person was not married at the time of his or her death but had one or more descendants, then the lineal descendants will inherit the full probate estate, after debts and costs of administration are paid.
Example:
Chris had 3 children, but one of them died a year before Chris, leaving a child of her own. Chris was not married at the time of death. In this case, the estate will pass as follows: 1/3 to each of Chris’s surviving children and 1/3 to the child of Chris’s deceased child (Chris’s grandchild.)
If the deceased person left a surviving spouse but no descendants, the surviving spouse inherits the probate assets. Similarly, if they left a surviving spouse and descendants of both the decedent and their spouse, and if the surviving spouse did not have any other descendants, then he or she still inherits all of the probate assets.
Example:
Anna died leaving behind her husband, John, and two adult children who were also John’s children. John does not have any other descendants. John will inherit Anna’s probate assets.
However, in a situation where there was a surviving spouse and surviving descendants of the deceased person and the spouse, but the surviving spouse also has descendants from a different relationship, then the surviving spouse is only entitled to one-half of the probate assets. In this case, the descendants of the deceased person inherit the other one-half. If the deceased person had descendants from a relationship with someone other than the surviving spouse, the same distribution rule applies, with the surviving spouse inheriting one-half and the deceased person’s descendants taking the other half.
Example:
Jamie died, leaving behind his second wife, Collette. Both Jamie and Collette had children from previous relationships. In this case, Collette is entitled to one-half of Jamie’s probate estate and Jamie’s descendants are entitled to the other one-half.
If there were no surviving descendants, the law says the deceased person’s parents will inherit equal shares of the estate if they are both living, or a single surviving parent will take the full estate.
In situations where the deceased person’s parents are no longer living, the intestacy rules next look at whether there were any surviving siblings of the deceased person or, if none, then any descendants of those siblings.
Example:
Trina was living with her boyfriend when she died, and did not have any children. She was survived by her mother and two sisters. In this case, her mother is still living so she will inherit Trina’s estate. Because they were not legally married, Trina’s boyfriend is not recognized as an heir for her probate assets.
When a deceased person had no surviving spouse, no lineal descendants, no surviving parents, no surviving siblings, and no surviving lineal descendants of siblings, then their estate passes one-half to their paternal relatives and one-half to their maternal relatives.
The relatives who will inherit in this situation, in order of priority, are as follows:
Although it is rare, there are scenarios where there is no identifiable next of kin as provided above. In such cases, the probate estate will escheat to the state of Florida. Assets subject to escheatment are sold and the proceeds deposited into the State School Fund.
The best way to ensure your estate will be distributed the way you want it to be distributed is to plan ahead. Review the way your assets are currently titled, consider beneficiary designations on things like life insurance, annuities, retirement accounts, and investment accounts, and create a will designed with your goals and wishes in mind.
There is no question that the probate process can be overwhelming. Working with an experienced, knowledgeable Florida probate attorney can help ease the stress of managing your loved one’s affairs.
Your attorney can also help you understand how to create your own estate plan, so you can be more confident your assets will pass to your desired heirs and beneficiaries, rather than being subject to the laws regarding intestate succession.
To learn more about Florida’s intestacy laws and the steps involved in probate, and to talk to a lawyer, contact us today!
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