Florida Inheritance Laws
Updated: Oct 26
What will happen to your property and assets after you’re gone? Will they be distributed to the right people? Have you done enough planning to make sure your wishes are fulfilled? A 2019 survey from Caring.com, an informational powerhouse for caregivers, found just 44% of individuals 55 and older have estate planning documents in place. Inheritance laws vary from state to state, and that may make it difficult for your family to get the assets you hope they will after you’re gone if you haven’t done any estate planning at all. What might happen to your property in Florida without a will? What changes if you have a will? This guide can help you understand more about the laws in Florida.
What You Should Know About Florida Inheritance Law
Before you understand what happens if you die with or without a will in Florida, it may be helpful to understand a few key facts about the law itself. First, it’s essential to know that spouses hold the strongest rights to intestate estates. Once the spouse has divorced, they lose all inheritance rights. But if the decedent passes away in the middle of a divorce, they will still maintain all the inheritance rights. If there are no surviving children, the spouse will get the entire estate. However, if the decedent had children with another person, the spouse will receive 50% of the estate, and the surviving children will get the other 50%.
Among children, biological children hold the strongest inheritance rights as long as DNA can prove that the children belong to the deceased. This law applies irrespective of whether the child was born in or out of marriage.
Rarely the court may not be able to track any relative who can inherit the intestate estate; in this scenario, the government gets to keep everything.
Don’t worry about nationality as you plan your estate. The beneficiary or heir to your intestate does not have to be a US citizen; it can even be an illegal immigrant. In the eyes of the law, regardless of immigrant status, the heir has a valid claim to the estate.
To summarize, under Florida law, the inheritance laws when there is no will means that the intestate estate will be distributed in the following manner:
First, it is the spouse - if she is not alive, then it is-
The children, if there are no children, then it is lineal heirs of children-
Then it is the decedent's parents, but if they are not alive-
The descendant’s brothers and sisters but if they are not alive-
The children of the decedent's brothers and sisters
Who Distributes the Estate?
The Florida courts usually decide on how the estate will be divided up among the beneficiaries. The actual disbursement of the estate is not done by the court system but by a court-appointed executor, surviving spouse, or an heir who the siblings have elected- it can be anyone who can handle the job of disbursement of the estate fairly. Often the estate must go through probate, whether there’s a will or not, to help distribute things as fairly as possible.
Making a Will in Florida
One of the single best ways to make sure your assets are distributed the way you want them to be is to make a will. There are actually a number of reasons people don’t have a will. Some just haven’t gotten around to making one. Others, though, don’t believe they have a strong enough asset portfolio to make one. However, the simple reality is that a will makes it far easier to distribute what you have to your family members and charities who might benefit from it.
If you plan to make a will in Florida, though, there are a few things you should know. First, for the will to be valid, it must be signed in the presence of at least two witnesses. If, for any reason, you are ill or have a physical impairment, you can request another person to sign the will in your presence. Additionally, you’ll want to name an executor of the estate who will handle the distribution of all assets to the beneficiaries listed in the will. Finally, the individual possessing the will must file with the local court within 10 days after your death. From there, probate will take place, and in most cases, it is a simple matter of distributing the assets according to Florida law.
Death but No Will
What happens if you don’t have a will? If someone dies without a will, it is known as intestate. In such scenarios, the State of Florida will determine how your assets are distributed to your beneficiaries according to the laws. The critical thing to understand is the Florida probate courts afford all intestate heirs an equal share of the estate’s assets/property; the court system does not play favorites.
In general, if someone dies without making a will, the legal system will come into play, and the intestate assets will be passed according to the rules of Florida inheritance law.
Worried about Taxes?
If you’re concerned about passing your property to your heirs because of taxes, don’t be concerned. In Florida, there are no estate or inheritance taxes. This law came into effect on Jan 1, 2005. However, it is important to be aware that while there is no inheritance or estate tax, the executor will still have to do the following:
File the decedent’s state and federal tax return by the tax date following the year they passed away.
If the decedent’s estate exceeds a value of $11.4 million, file the Federal estate tax return within 9 months after the decedent’s death.
File the Federal trust/estate income tax return on April 15th of the year following the decedent’s death.
Why Should You Consider Estate Planning Now?
Why is estate planning in Florida so important? It’s simple. There are many scenarios that mean having the court distribute your assets might create a problem. Imagine, for a moment, that you have a spouse and an adult child with a different partner. Maybe you want your spouse to inherit all of your property. Without a will, though, half of your estate goes to your child, no matter what the relationship.
Take another scenario under consideration. Say you never married, but you have three surviving siblings. You’re close to one sibling, but you haven’t spoken to the other two since you were teenagers. You’d like your assets to go to your closest sibling, but your property would be divided equally under intestacy laws if you didn’t have a will.
Even if you think your estate isn’t that large or that important, drafting estate plans is vital if you wish to avoid any problems. If you have any type of asset or property, the best recommendation is to make a will or a living trust. This way, you can designate your heirs and state whom you want to receive. The right plans mean no hassles, making the probate process simpler, faster, and cheaper.
If you are confused about wills, living wills, and probate, see a Florida estate lawyer who can advise you on protecting your assets while you are living and what you can do to disperse them following your death.