When someone dies without a valid will, that person is said to have died “intestate.” On the other hand, people who die with a valid will are said to have died “testate.” Some Florida residents with no valid will are worried about the State of Florida taking their property after their death. As much as that is a possible outcome, it is not often the case. Before the State can take your property, there must first be a search done to trace someone related to you, even if that person is a distant relative.
The assets of people who die intestate (without a will or valid will) are distributed according to the Florida intestacy statutes. These laws set out an order of preference as to who gets your property after you pass. Intestate succession is considered a backup plan by the courts because the deceased did not leave a will, and therefore, the court does not know the final wishes of the deceased.
Assets That Pass Through Intestate Succession
When you die without a will, your property does not have any identified beneficiaries. As such, your property will have to go through the probate process. In other words, when your property gets probated, it goes through a legal process supervised by the courts. The procedure is necessary to ensure that your taxes and debts are paid and that your property ends up with the rightful beneficiaries as per the Florida intestacy statutes.
It is crucial to note that not all assets are subject to probate and Florida’s intestate succession laws. Some of these assets include joint bank accounts, life insurance proceeds with named beneficiaries, properties transferred to living trusts prior to your death, life estate deeds, securities that are held in transfer-on-death accounts, funds in 401(k), IRA, or retirement accounts with a payable on death beneficiary, or property you own with other people as joint tenants with rights of survivorship.
Probate administration can last a month to over a year, depending on whether you qualify for summary administration or formal administration. In a summary administration probate proceeding, courts ensure efficiency in transferring small estates when someone has been dead for over two years and the deceased’s creditor claims are barred, or if the deceased’s assets are less than $75,000. In contrast, formal administration is the appropriate forum when a deceased’s assets that have to go through probate exceed $75,000 and the deceased passed away less than two years ago.
In a formal probate administration, the courts will appoint a personal representative (.i.e., executor) to administer your property. If there is a will, the court will often appoint the executor named in the will to manage the affairs of the estate – that person is considered to have priority. The person with the next priority is the one selected by a majority in interest of the heirs. After that, it would be the person named as a beneficiary under the will. If there is more than one heir, the court may select the one best qualified.
If you do not leave a will (or a valid will), the Florida statutes provide an order of preference for who will be the personal representative or petitioner of your estate. The person with top priority would be the deceased’s surviving spouse, followed by the person selected by a majority in the interest of the beneficiaries, and then the heir nearest in degree. If there is more than one heir nearest in degree , the court may select the one best qualified.
Such a scenario is avoided if you create a will and name a personal representative. You can choose anyone as long as the person is older than 18 years of age, a Florida resident, and is mentally and physically capable of performing the duties of a personal representative. If the personal representative you choose is not a Florida resident, the person must be your blood relative. The person must also have a clean record, meaning they must not have a felony on their record.
What Happens to Your Children if You Die Intestate in Florida?
Dying without a will means that all pf your children below 18 years of age will be in the custody of the surviving biological parent, who becomes their sole guardian. If there is no surviving biological parent, a family member can petition the court to become the guardian of your children. If you die with a valid will, you will most likely name who you would like to become the guardian of your minor children in the event of your death.
Who Inherits Your Assets if You Die Intestate in Florida?
If you die without a will, the first person the courts consider is your spouse, who receives 50% of your assets if you had children from a different marriage. If you did not have any children, or only had children with your spouse, then your spouse receives 100% of your property. If you were not married, your descendants will receive all your property.
If your child died before you, their share passes to their children (i.e., your grandchildren). The property is shared equally among your other children if you do not have any grandchildren. If you do not have children, your parents inherit your property. If your parents are not alive, your siblings inherit your property.
When Does the State of Florida Keep Your Property?
Your property will only be escheated to the State of Florida when you die intestate and the State cannot trace your line of succession (or if you have no surviving blood relatives).
How Farshchian Law Can Help
If you have questions about Florida’s intestacy laws or estate planning, please contact us for a free, confidential consultation with one of our Florida probate attorneys. We offer probate services throughout the entire State of Florida.
Whether you are an heir who has to undergo a probate involving Florida’s intestate laws or you are an individual who wishes to avoid having your family members 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.