If a Florida resident dies without a Last Will & Testament, their assets will be transferred to their closest relatives under state “intestate succession” laws. The following is a brief summary of how intestate succession works in Florida.
Only assets that go through probate are impacted by intestate succession laws. Many valuable assets are not subject to probate, and therefore they are not affected by intestate succession laws. Here are some examples: property one has transferred to a Living Trust; life insurance proceeds with a named beneficiary; funds in an IRA, 401(k), or other retirement account with a named beneficiary; securities held in a transfer-on-death account; real estate for which one has a transfer on death deed or Lady Bird Deed; vehicles for which you have a transfer on death registration; payable-on-death bank accounts, or property a person owns with someone else in joint tenancy with right of survivorship, or tenancy by the entirety (i.e., as spouses).
These assets will be transferred to the surviving co-owner or to the beneficiary one has named, whether or not a Last Will exists. However, if a person possesses or creates a Last Will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to Intestate succession.
Florida Statute Sections 732.101-.109 cover this process of Intestate succession. When someone passes away without a Last Will, or Trust, all assets go to the closest relatives or “next of kin.”
The heirs follow a specific order in Florida:
- The first to inherit is the surviving spouse. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse gets everything and there is no waiver of rights pursuant to a signed Prenup or Postnup or comparable document.
- Next in line are the children. If a child dies before the parent, then a grandchild may inherit a portion of the estate. Children must be legally adopted or biological children to fit in this category. Step-children are not included.
- If the decedent dies without a spouse or children, then, the decedent’s parents are next in line to inherit the estate.
- If none of the above are alive, then the deceased’s siblings would divide the estate.
Certainly, family units may be difficult and complicated in today’s world. For example, usually the surviving spouse receives or inherits everything. However, if the decedent has children from a previous marriage, the surviving spouse may get half the estate and the other half goes to the child or children from the prior marriage(s). Basically, each scenario may have difficulties and complications.
Proper estate planning can prevent intestate succession. A comprehensive and even a proper basic estate plan includes a Last Will and/or Trust, as well as a Powers of Attorney for financial and healthcare needs. These essential documents protect all Florida residents and their families and tend to conserve funds and assets.
How many people want State law to determine how their hard-earned life’s assets are distributed? How many individuals want to pay the State money after their death?
Properly written and executed estate plans reduce estate taxes, eliminate lengthy probate proceedings, avoid family disputes, set up care for minor children, and fulfill the deceased party’s wishes. No one can anticipate the future, however, thoughtfully planning ahead provides a sense of peace of mind.
It is important to note that intestacy does not mean that the State of Florida owns or will acquire the property of the deceased. This term simply means that the Probate court is required to invoke a specific process to determine who receives the deceased individual’s assets.
This process may differ depending on the state where the deceased party resided at the time of death. Florida has a complex and detailed process in determining who receives these assets. Usually, the surviving spouse is the first to inherit the subject property. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse receives everything.
Since the process regarding intestate succession is very involved, it is vital to work with an attorney who is experienced with probate cases. To avoid confusion and disputes among potential beneficiaries or heirs and ensure that assets are properly distributed according to state law, one should employ an experienced attorney.
The foregoing is a brief and general overview of the outcome if no estate plan is established in Florida.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.