What if there is no will to probate, who gets what?

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October 16, 2024

End-of-life planning can be a scary thing. People, by nature, do not readily wish to confront the idea of their own death, but estate-planning is the only way to explicitly lay out exactly how a person wishes to divide their assets after their death. This is typically done either through a Last Will and Testament, which can be done at any time in one's life and doesn't necessarily need to be put together in the last days of a person's life. Any adult can create and execute a valid will at any point, and reserves the right to alter their will at any point in their life, since details of a will often change, such as property bequeathed to heirs being lost or sold, or interpersonal strains resulting in certain heirs being "cut out"; of a person's will.

When a person dies with a proper will in place, probate is initiated under the label of a Testate Estate.

However, as in about half or more of all our cases, often people pass away unexpectedly or simply having never approached an attorney to get their affairs in order, probate proceeds as an Intestate Estate.

In intestate estates, since there is no governing document directing how to divide the estate, a state's laws of intestate succession go into effect. Each state has their own set of rules which determine who will receive the benefits of the estate and in what shares, and Florida's Rules of Intestate Succession can be found in the Florida Statutes at Chapter 732 Sections 101-111.

There is a popular myth often portrayed in film and television that those that die without a proper will in place will have their assets taken by "the government," but this simply isn't true. For married persons, their spouse will take the entirety of their estate in an intestate matter, with the only condition being if there are children from a previous marriage or children of the decedent that were not products of the marriage. In this case, the spouse of the decedent will take half the value of all assets and those children will divide the other half amongst themselves in equal shares. For widowers, divorcees, and the unmarried, any children the decedent has will share the estate. If the decedent has no living children, then the estate falls to the decedent's parents, should they still be living. If not, then the estate will be taken by the siblings of the decedent, and if there are no siblings, the law states that the closest living consanguineous (a fancy word for blood-related) relative will inherit the estate, be they grandchildren, cousins, aunts, uncles, and so on. This is uncommon, but the exact order of succession can be found in the Florida Statutes which are publicly available online.

One of the overlooked aspects of intestate probate is that the court will rely upon the death certificate of the decedent to determine their marital status at death. Some people erroneously believe that their live-in boyfriend or girlfriend may be able to claim their estate, but if there is no will in place, this cannot happen. In one of our cases, the relatives of a decedent reported to the coroner that the decedent was divorced at death, but it turned out that the decedent never finalized their divorce and was still legally married to a person he had been separated from for 20 years. Since he had no will, this woman was entitled to a share of his estate, and the death certificate of the decedent had to be corrected by court order.

One unique aspect of intestate succession comes into play when there is a Homestead in the estate. Florida's unique homestead protection abides by the laws of intestate succession, and as such, when there are children outside of the marriage, they are entitled to a share of the house. In this situation, the surviving spouse takes what is called a Life Estate interest in the homestead property, meaning they are entitled to live in the home for the entire remainder of their life but are not entitled to sell the property without the consent of the surviving children. This is a compromise that ensures that the spouse is not deprived of the home they shared with the decedent while living while also ensuring that the childrenare still entitled to benefit from the estate of their deceased parent. Intestate estates can be difficult to navigate, especially when there are estranged family members who must be informed of their rights to their inheritance before anyone can receive their share. We are fully prepared to help our clients navigate this sometimes confusing set of circumstances and complete the probate process in the shortest time possible.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.