UNDERSTANDING INTESTATE SUCCESSION IN FLORIDA: WHO GETS WHAT?
If someone dies without a will in Florida, their property may need to go through a legal process known as intestate succession. Intestate succession is governed by Florida inheritance laws, which determines who will inherit a deceased person's property. Understanding intestate succession is important because it can help you plan how your property should be distributed among your heirs after death. In this article, we will walk you through the basics of intestate succession in Florida, who inherits property when there is no will, the types of assets/ property subject to probate whether the deceased died testate (with a will) or intestate (without a will) thereby being subject to distribution under Florida's intestate succession, and what you can do to avoid probate.
WHO INHERITS PROPERTY IN INTESTATE SUCCESSION IN FLORIDA?
If a person dies intestate (which means without a will), their estate will be distributed among their heirs according to Florida inheritance laws. The order of descent in Florida probate can be found in sections 732.102 and 732.103 of the Florida Statutes and it mainly depends on the presence of the surviving spouse and descendants of the deceased. If the deceased was married at the time of death and had no kids, then the surviving spouse inherits the entire estate. If the deceased was married and had kids related to the surviving spouse and the surviving spouse has no other kids, the surviving spouse will inherit the entire estate. If the deceased had one or more kids who are not lineal descendants of the surviving spouse, or if the surviving spouse has one or more kids who are not the kids of the deceased, then the surviving spouse will inherit only one-half of the estate while the kids will inherit the remaining half of the estate.
If the deceased had no surviving spouse, the descendants of the deceased will inherit the entire estate. It is important to note that if a child of the deceased has predeceased their parent, that kid's share of the intestate estate will pass to their own kids i.e. the grandchild(ren) per stripes. This means if a child of the deceased has already died, their own kids will receive the deceased child's share of the estate, rather than it being divided equally among the other surviving brothers and sisters or heirs.
If the deceased had no descendants, then the estate will be passed on to the deceased's father and mother equally or to the surviving parent. If the parents are no longer living, the estate will be passed on to the deceased's brothers and sisters and the descendants of the deceased brothers and sisters. If the deceased had no surviving spouse, child(ren), parents, brothers or sisters, nor nieces and nephews, then ½ of the estate will pass onto the deceased's paternal and maternal grandparents, kindred in the following order:
- To the grandfather and grandmother equally or to the survivor of them.
- If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
- If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive in the order stated above.
- If there is no kindred on either side, the estate shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the descendent and then died intestate entitled to the estate.
- If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
When a person dies without being survived by any heirs entitled to their estate, the estate shall escheat to the State.
WHAT TYPES OF PROPERTY ARE SUBJECT TO INTESTATE SUCCESSION IN FLORIDA?
Not all property passes through intestate succession in Florida. For example, any property that is owned jointly with the right of survivorship or a property that has a named beneficiary such as life insurance policies or retirement accounts will automatically pass to the surviving joint owner or the named beneficiary upon the death of the deceased. Similarly, property that has been placed in a trust will pass outside of probate according to the terms of that trust. However, if a property is solely owned by the deceased and does not have a named beneficiary or is not held in a trust, that property will be subject to intestate succession.
The following are a few examples of assets which bypass probate whether the person died testate (with a will) or intestate (without a will) where Florida intestate succession would apply. These assets pass directly to the named beneficiaries.
- A life insurance policy with a named beneficiary. Upon the decedent's death, the proceeds of the life insurance policy go directly to the named beneficiary.
- Property that is held in a trust. Property held in a trust is distributed according to the terms of the trust, rather than through intestate succession.
- A bank account with a designated beneficiary to receive the account funds upon their death of the account holder. The named beneficiary will receive the account funds directly, without the need for probate.
- Real estate with a transfer-on-death (TOD) deed, more commonly referred to as a ladybird deed. This type of deed is one in which upon the owner during their lifetime holds a life estate, and upon their death the property automatically transfers to the designated beneficiary without the need for probate.
HOW TO AVOID INTESTATE SUCCESSION
Intestate succession can be avoided by creating a valid will or by using other estate planning tools, such as trusts. Creating a will allows you to choose who will inherit your property and how it should be distributed after your death. It also allows you to name a personal representative to manage your estate. Trusts can be used to hold and distribute assets outside of probate and provide more control over how and when assets are distributed.
SECURE YOUR LEGACY TODAY: CREATE YOUR ESTATE PLAN NOW
Understanding Florida's intestate succession is crucial to ensure your estate is distributed according to your wishes. If you pass away without a will, your property will be subject to Florida intestate succession laws, which can result in unintended consequences. Therefore, it is important to seek legal advice and work with an experienced attorney to create an estate plan that reflects your wishes and goals. By doing so, you can avoid the potential pitfalls of intestate succession and ensure your loved ones are provided for in the way you intended.
At TCB Legacy Law, we understand the importance of proper estate planning for families and individuals alike. We will assist you in creating a plan that meets your unique individual needs. Contact us today at 954-302-8989 to schedule a consultation and take the first step towards protecting your assets and providing for your loved ones.