When a person dies without making a will, the process that determines the distribution of his or her assets is referred to as intestate succession. For example, if you die without making a will, no one can legally distribute your estate/assets. This matter is then handled by the state. Like Florida, every state has its own intestate succession rules. The formal rules that dictate intestate succession are determined by the probate court, which is essentially a very long and costly process. The probate court initially takes control over all the assets belonging to the decedent and then decides who will inherit the money, property, and other aspects of the estate.
The Law: Florida Intestate Succession
According to the Florida Intestate Succession laws, when someone dies without making a will, all the assets go to the closest relatives in the following order:
- The surviving spouse is the first to inherit the estate, provided that the marriage is valid. If there are no living children, the spouse will get 100% of the estate.
- The next in the line of succession are children. However, the children must be biological or legally adopted to meet the legal requirements of estate transfer. Stepchildren are not permitted to receive the estate. If the only child dies before the parent, the next in line is the grandchild.
- If there is no spouse or biological children, then the next in line to inherit the estate would be the decedent’s parents.
- If the decedent’s parents are not alive, then the siblings of the deceased would be next in line.
Unfortunately, the family unit is much more complex today. Some people have been married two to three times and may have children during each marriage; hence, the intestate succession of distribution of the estate does get more complex. However, the probate court will figure out the line of succession and determine who will get what percentage of the estate.
Which Assets Are Not Affected By Intestate Succession?
When someone dies without a will, not all the assets have to go through probate court. Assets that are not affected by probate include the following:
- Life insurance policies usually have a named primary and/or secondary beneficiary, so they do not go through probate. The money is given directly to the named beneficiary after the death of the decedent. Further, life insurance payouts to beneficiaries do not fall in the probate inventory of the decedent and, hence, are not subject to claims by creditors.
- Revocable trusts also are not part of the probate estate. In fact, experienced estate attorneys recommend creating revocable trusts primarily to avoid probate.
- Jointly owned property also does not go through probate. In such cases, the jointly owned property automatically passes to the legal tenant named in the ownership. A classic example is a jointly held bank account which automatically goes to the joint owner if one of them dies.
- Other assets that do not go through Florida’s intestate succession laws include retirement accounts, 401Ks and IRAs, securities, and other investments which have a designated beneficiary.
In simple terms, if you have an account where you have a designated beneficiary, this investment or assets will not go through the Florida intestate succession process.
Is It Possible To Avoid Intestate Succession?
In general, the best way to avoid intestate succession in Florida is proper estate planning. This may include making a will, trust, and/or granting power of attorney for your health and financial needs. This approach will protect you and your family and save everyone money and time.
No one can predict the future and it is best to be proactive and create a will or a trust where you can name your heirs or beneficiaries as you wish. Without a will, it is the government who will decide who gets your estate and it may give your assets to people whom you never intended to give anything.
Can One Be Disqualified From Receiving The Estate?
Yes, an individual who has been charged and criminally convicted with the murder of the decedent is not eligible for any inheritance of the decedent’s estate. Even if there is no criminal charge, all allegations of a crime are evaluated by the probate court.
Divorce also ends the spouse’s right of inheritance. However, if the spouse is separated or in the process of a divorce, he/she may still inherit if the decedent dies before the marriage is dissolved.
Does The State Take Your Property?
If you do not have a will, then Florida intestate succession laws come into play. The government will search for a relative, but sometimes no one can be found. Only in very rare circumstances does the state get to keep your estate. This is only done as a last resort and after an exhaustive search for relatives.
When a person dies without a will, the assets are declared intestate. This does not mean the government owns the estate, it simply means that in order to distribute the estate, the court will now become involved to determine who will be the recipient of the assets of the decedent. Intestate succession in Florida ensures that the estate goes to the rightful person. In short, the first to inherit the estate is always the surviving spouse as long as the marriage was valid. If there are no children, 100% of the estate goes to the surviving spouse.
If intestate succession in Florida laws come into effect, then the Sunshine State requires the presence of a lawyer. Doing so will ensure that there are no disputes or confusion among the potential heirs and will ensure that all the assets are distributed according to state law. Elder Law, P.A. has vast experience and specialization regarding wills, trusts, and all things inheritance. Call us today at (561) 933-4769 to learn more.