Florida has a higher-than-average population of people over the age of 65. This demographic makes up approximately 21% as of the 2020 census. As such, there tends to be a higher-than-average focus on estate planning and end-of-life rituals. However, many people do pass away without making provisions for the distribution of their assets – when this happens, state law creates what is known as an intestate estate. Our Florida probate attorneys at Farshchian Law P.A. explain more.
The Intestate Process Is Impersonal
Usually, when a person passes away, their will is submitted to probate. During the probate process, the will is validated, creditors can recoup what they are owed, and any remaining assets are granted to the specified heirs. If a person has no will, however, Florida intestacy laws take over. This means that assets are distributed strictly according to state law, with no input permitted from the decedent’s heirs. Intestacy is designed for swiftness and efficiency when the deceased did not leave a will – however, this often tends not to be the case because of the fact that the deceased may have left several heirs, or the heirs are not willing to cooperate with each other.
Probate Assets Are Intestate Assets
Not all of a deceased’s assets will have to be distributed per Florida’s intestate laws because only probate assets have to go through the mandated probate court process. There are many types of assets that are not required to go through probate in Florida, such as:
- The proceeds of a life insurance policy (with a named beneficiary).
- Assets that have been placed in a living trust;
- Property owned under a life estate deed;
- A retirement account (of a payable on death beneficiary is named); and
- The property that is owned with someone else as joint tenants with rights of survivorship or tenancies by the entirety (for married couples).
The assets that have to go through probate are the ones that will be divided according to Florida’s intestate laws.
Who Gets What?
Florida follows a fairly strict, linear procedure to determine who is entitled to a deceased’s assets and the overall percentage of the intestate estate. Perhaps the most important thing to be aware of is that if you are married, your surviving spouse will be granted the lion’s share of your estate, even if you have other descendants. In general, at the time you pass away:
- If you are married with no children, your spouse gets the entire estate.
- If you are married with children and all your children are also the children of your spouse, your spouse gets the entire estate.
- If you are married with children, and your spouse is not a parent to all of your children, your estate is split (with 50% going to your spouse and the rest to your children).
- If you are married with stepchildren, your spouse gets the entire estate unless you formally adopted the children as your own.
- If you are unmarried and have no descendants but have living parents, your parents are entitled to the entire estate.
- If you are unmarried and have no descendants or living parents, but you have living siblings, they get your entire estate.
The intestacy statute also has provisions for other family members if you have no surviving spouse, descendants, ascendants, or siblings at the time of your death. If you have no family of any kind, your property may escheat into the state’s coffers. However, this only happens on rare occasions.
Contact a Florida Probate Attorney
It is very common for people not to want to think about end-of-life planning, particularly if they are under the age of 65. Unfortunately, things can happen when you least expect them. Florida’s intestate laws will distribute your property, but having an estate plan can ensure that your assets go to the people you want to have them.
If you have questions about Florida’s intestate laws or estate planning, consider a free, confidential consultation with one of our Florida probate attorneys.
Whether you are an heir who has to undergo the Florida intestacy process or you are an individual who wishes to avoid having your heirs go through the probate process, we can provide you with guidance and assistance. Call us today at 305) 901-5628 or (239) 935-8599 to schedule a free consultation, or email us at Info@JfRealEstateLaw.com.