None of us know how much time we have left, but most of us live as though we have all the time in the world. Unfortunately, people pass away usually much sooner than they expect to, and unfortunately for their families, it’s usually before they had the chance to get their legal and financial affairs in order. One recent survey found that only about 4 in 10 American adults currently have a will or living trust, which is a major problem!
A will is an extremely important document that lays out how a person’s assets should be distributed to their chosen heirs; when someone dies without a will, the state’s laws – not their own wishes, or their family’s wishes – determines what happens to all of their money and possessions.
This process, when Florida court decides how a deceased person’s estate gets settled, is known as “intestate succession”.
If you’ve recently lost a loved one and are navigating intestate succession in Florida, let us first say how very sorry we are for your loss. We know that death is hard enough even when a will was left behind, and is made exponentially harder when it wasn’t.
Our law firm, Elder Law, P.A., is passionate about making death easier on grieving families. Here are some things you need to know about intestate succession that can simplify your way forward and also help you avoid the same headache for your family in the future!
What Assets Are Affected
The “good” news (if there is any good news) about intestacy is that only assets that would ordinarily have to pass through probate court – which would be relevant if your loved one did have a will – are affected by intestate succession.
Any life insurance proceeds with named beneficiaries can pass directly to them; any funds in a retirement account with named beneficiaries can pass directly to them; any property owned jointly where the joint owner is still alive becomes theirs. So if your loved one passed away, these assets can go directly to your family without you needing to go through a court process to obtain them! However, other assets like real estate, personal property, vehicles, and bank accounts will likely have to pass through intestate succession.
If by chance a deceased person who didn’t have a will owned real estate property with a transfer-on-death deed, or had transfer-on-death designations for vehicles, bank accounts, or securities, then those won’t be affected by intestate succession in Florida either. (In most cases, though, a person who didn’t have a will won’t have these other designations in place.)
Who They Go To
In general, without a will, any wealth left behind after debts have been paid will pass to the closest living relatives – the spouse, children, parents, siblings, children of siblings, then other extended family members. However, it’s much more complicated than that, especially if there are unique family circumstances!
Here is how intestate succession works in Florida:
With a spouse, and no children, the spouse would inherit 100% of the estate.
With a spouse, and children with that spouse, the spouse would still inherit 100% of your estate (unless they had children that were from a previous relationship). If they had other children from a previous relationship, the spouse would only inherit 50%, and the children would inherit 50%.
With children, but no spouse, the children would inherit 100% of your estate. (In this scenario and the previous one, the portion that goes to the children would be divided equally).
With parents, but no spouse or children, the parents inherit 100% of the estate.
With siblings, but no spouse, children, or parents, the siblings inherit 100% of the estate (divided equally).
Note that most of these percentages are 100% – the entirety of the estate passes to one person. That can be tricky, especially if family members don’t get along, or if the deceased person gave verbal wishes that don’t match the state’s procedures and that surprise the family members.
For example, Joe is an elderly man who has three adult children – Jesse, Jessica, and James. James is estranged from the rest of the family and never speaks with them, while Jessica has spent the last five years taking care of her dad in his old age; he lived with her family. Jesse lived in another state and came to visit often. Imagine Joe passes away without a will. According to intestate succession in Florida, James, Jessica, and Jesse would all receive an equal share of Joe’s estate, which isn’t fair considering Joe’s and James’s relationship and Jessica’s investment!
Or imagine that Joanna was married to Joseph and had two children, Janice and Joshua, but Joe suffered from an addiction to drugs and alcohol. They were separated, though not legally, and she developed cancer. She never made a will. When she passed away, Janice and Joshua, though they were the ones that Joanna wanted her money to go to, receive none of the inheritance – it all goes to Joseph. Another unfair and unfortunate situation!
How To Avoid Intestate Succession In Florida
Not all intestate situations are that dramatic or foreseeable, but many of them are.
If you find yourself having lost a loved one who passed without a will, regardless of what the circumstances are, working with a Florida lawyer who is well-versed in estate, probate, and intestate laws and who can explain what your next steps should be is the best way to resolve everything quickly and efficiently.
And if you don’t have a will in place yet, this is the right time to get one! Tomorrow isn’t promised, and the best way to ensure that the right people get your hard-earned money and feel cared for after you’re gone is to, again, work with a Florida estate planning lawyer. Elder Law, P.A. is where knowledge and compassion meet to protect your legacy. We can help you draft a will, trust, and other tools that are personalized to your unique needs so you – and everyone you care about – can have peace of mind! Call today to schedule a free consultation and learn more.