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What happens if you die without a will in Florida?

If you die without a last will and testament in Florida your probate assets are distributed according to the laws of intestacy, meaning to your family in a relatively logical manner.  

The first thing to consider is that whether you die with or without a will, the probate process involves assets that are in the decedent's own, individual name. The probate process covers things like bank accounts, stocks, bonds, land and more, but only if those assets did not have a joint owner or a beneficiary. This means that probate typically does not cover life insurance, for instance, because life insurance would have a beneficiary. The will, or lack thereof, does not effect something with a beneficiary. A good explanation of what assets are subject to probate is set forth here

Next, if someone dies with assets that are subject to the probate process, the estate is distributed either according to the last will and testament (i.e., "testate") or without a last will and testament ("intestate"). With an intestate estate, the state of Florida has written a will for the decedent that is distributed to his or her family.  The rules for intestate distribution are set forth in Chapter 732, Florida statutes, which can generally be summarized as follows:

  1. If you are married and you have no children or all of your children are also the children of your surviving spouse, then all to your surviving spouse;
  2. If you are married and had children from a previous relationship, then one-half of your estate to your surviving spouse and one-half to your descendants (i.e., equally to your children);
  3. If you were not married at the time of death, then as follows:
  • equally to your children and descendants of any predeceased children;
  • If none, then to your parents, or the survivor thereof;
  • If none, then to your siblings and descendants of any predeceased siblings;
  • If none, then (this is where it can get really difficult) to your grandparents, and if none, to your aunts and uncles and their descendants.
  • If you had no other family, then to the the kindred of your last deceased spouse; and if none, 
  • Property escheats to the state of Florida.

Most people do not necessarily know what a last will and testament does. Your will directs where your assets are distributed as part of the probate process and nominates the personal representative (i.e., "executor"). The state of Florida is only a beneficiary only if you had no heirs whatsoever, which is very, very rare.

If someone dies intestate, the decedent's family would generally need to work together to choose a personal representative, who would likely seek legal advice on going to court.

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D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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