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Florida Intestacy — understanding it in 5 steps

Probate Information Dec 25, 2022
post about Florida Intestacy — understanding it in 5 steps

Family members inherit if there is Florida intestacy. But understanding how much you inherit, and how you inherit, are both important. You may get more than you expect! But, remember: there is no will !

There’s no reading of the will with a Florida intestacy. There IS no will !

Understanding Florida Intestacy

OK, here are the 5 main points that you need to know about Florida intestacy.

And, to read or learn more about this Florida inheritance topic, there is a list of resources at the end of this blog.

  • No will !! Intestacy means that the probate administration of a deceased Florida resident’s estate is done according to the Florida Probate Laws on intestacy. The estate will be administered as an “intestate” estate. There is no will. So, any “interested” person can ask the probate judge to “run” or administer the estate. Any property which is not disposed of by a will “goes” according to those special Florida intestacy laws.
  • Family inherits— including short term 2nd spouses. (see next bullet point). Who inherits in a Florida Intestacy? Family members do. What the statute or law calls “descendants”. Like the spouse and the children. For children’s share, see Florida Probate Law 731.103. For the spouse’s share, see 731.102. And these inheritance rights are NOT limited to minor children. ADULT children inherit under the Florida intestacy laws. What if a child is dead? If a deceased child leaves children or grandchildren, those family members inherit the deceased child’s share. Or, it goes to the estate of the deceased child. (It depends when the child passed). So, you really have to know who is alive. And who pre-deceased the Florida resident, leaving “issue.” It’s usually best to create a family tree to see who inherits how much.
  • Spouse’s Rights Are Paramount ! — a surviving spouse inherits at least half the estate unless he or she signed away her rights. Like in a proper waiver or prenuptial agreement. The spouse gets all of the estate if the deceased Florida resident’s children were all the product of the relationship with the surviving spouse. But, if the surviving spouse was not the parent of the decedent’s children: the children get half and the spouse gets half. Of note to non spouse family members– the Florida intestacy laws don’t care how long the spouse was married to the deceased Florida resident. (Yup, the spouse gets half even if married for only a week.)
  • Not So Fast ! (remember the creditors)– beneficiaries and family members often forget that creditors get paid first. What ??? That’s right. But that’s the case for any Florida estate — with or without a will. The deceased Florida resident’s final bills, taxes, costs, expenses, debts and obligations MUST be paid first. Before any inheritances. Now… experienced probate litigation lawyers will tell you that there are some weird rules and procedures. So, some creditors may end up not getting paid.
  • Wills — what if someone comes forward with a will at the last minute? Or, comes forward only with a copy of a will? If they “petition” to have the will admitted to probate, you will have a trial on the validity of the will. The probate judge will determine if the will is valid, or if the estate is an intestate estate. Many times, the family “fights” with other beneficiaries, like under a just-discovered will. BUT remember that the person coming forward with a will must jump through all the evidence and procedure hoops. So, talk to a probate lawyer who handles probate trials to learn more.

Reading More

To read and learn more about Florida intestacy, consider these free resources.

  • Florida Probate Code — all the statutes and laws passed by the Florida legislature and signed into law by the Governor.
  • Florida Probate Rules — rules that help you understand the probate process.
  • Creditors of the deceased Florida resident have their own set of laws. As do anyone who makes a claim.
  • Florida gives a surviving spouse a lot of valuable property rights. In addition to the intestate share of the estate. To read more about these, click on the Florida Probate Code. There are a lot of laws which deal with this.
  • For homestead litigation, click here.