Failing to prepare a valid will can lead to intestacy, which burdens the most important people in your life.
Intestacy, particularly Florida intestate succession upon death without a will or with a flawed or invalid will, can be costly. If you’ve visited our website or read our blog before, you likely understand the vital importance of estate planning and creating a will. Unfortunately, many people pass away without ever taking steps to legally define their wishes for how their estates should be administered and who should inherit their property. Caught in that trap, consult with an intestate lawyer.
When a person dies without leaving a will, their estate is described as being “intestate.” Intestacy law refers to the process of determining who will inherit the property of a decedent who leaves more property than debts when they die but neglect to leave a will, or they leave a will that does not address key points, in which case partial intestacy may apply. Keep in mind that all estates without a will must pass through probate in Florida, and if an estate is insolvent, intestacy laws do not apply.
In the US, intestate succession laws vary from state to state
Determining who has the right to inherit certain assets can be incredibly complex and raises difficult questions. If you die with both a living spouse and living children, who should inherit your assets? If you have no descendants and your spouse passes before you do, but your spouse has children from a previous marriage, do they have a claim to your estate?
Florida intestate succession will depend on the circumstances of the decedent’s living relatives, as well as those of a surviving spouse. For example, if the decedent leaves behind both a living spouse and descendants, and all of the descendants are also descendants of the living spouse, and the spouse has no other living descendants, then the spouse is entitled to the entire probate estate. If the decedent leaves descendants but no spouse, the descendants are entitled to the entire estate. However, if the decedent leaves behind both descendants and a living spouse, and the descendants are not related to the living spouse, then the estate will be split 50/50 between the spouse and descendants. Finally, if a decedent leaves behind descendants who are also all descendants of the surviving spouse, but the surviving spouse also has descendants who are not descendants of the decedent, the surviving spouse will inherit only 50%. As you can see, the scenarios can become fairly complex without proper planning.
Florida intestacy statutes address a number of circumstances, including when the decedent leaves no living spouse or children. In such cases, the parents of the decedent generally have first claim to the probate estate, followed by siblings. For the purposes of intestacy, Florida law entitles half-siblings to a one-half share as compared to the share of full siblings.
Keep in mind, not all property will be included in the intestate estate.
Only property that is part of the probate estate can be included. This usually means property that was in the sole name of the decedent. Assets that are not part of the probate estate may include living trusts, retirement funds, and life insurance proceeds.
Even with clear statutes regarding succession in Florida, having a relative die without leaving a will can lead to a great deal of strife among family members. It is always in your best interests to create a will before you die to avoid conflict and other major issues. However, if a loved one passes away without leaving a will, and you believe you have a claim to the inheritance, you will likely need an attorney to advocate on your behalf. Whether you need assistance with planning your estate to avoid intestacy, or if you need representation following the passing of a loved one, please contact us today.
Written by: John Mangan, JD, MBA
