According to a 2021 Gallup survey, 54% of Americans do not have a Will. Why are people hesitant to make a Will? Well, most survey respondents said they just haven't gotten around to making an estate plan. Making a Will in Florida can be a challenging process, and a lot of people think they don't have enough assets to justify paying thousands of dollars to a lawyer. But there are serious consequences to dying without a Will in Florida. In this article, we'll unpack what happens when you pass away without an estate plan.
What Does Dying Intestate Mean?
If you die without a Will, that means you die "intestate." The word intestate is a legal term. In essence, it means your estate will be distributed according to Florida law rather than by your wishes. So let's look at how courts decide what happens to your estate after you die.
In Florida, the process begins with the probate court. Probate is the process of identifying and gathering the assets of the person who passed away. If you had a Will, then the executor begins the probate process. The court validates the Will by checking to make sure the Will was executed properly - signed and witnessed appropriately. When someone dies, the executor of the estate, a lawyer, or a family member must inform the court of the person’s death. They must give the court a copy of the death certificate. This begins the process of probating an estate. A probate judge then officially appoints your executor, who starts the process of settling the estate.
If you die without a Will, the probate court will have to appoint an executor, and that person will make all the decisions about paying your debts and distributing the assets to your beneficiaries. Asset distribution is determined by state law.
What Assets Are Distributed If You Pass Without a Will in Florida?
What does the state of Florida get to decide about your assets when you die without a valid Will? Assets they will consider include:
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Real estate
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Vehicles, including boats, recreational vehicles, and planes.
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Bank accounts
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Personal property, such as family heirlooms, furniture, and memorabilia.
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Pets
The probate process might take months or years, especially if the state needs to track down family members. It can be very costly since the state will appoint a trustee and pay taxes.
Florida Assets That Are Not Impacted by Intestate Succession
Not all assets are transferred through the probate court. If you own any of the following assets in Florida, they will be transferred to beneficiaries that you identified when you filled out the documentation:
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Assets that have been transferred to a living trust.
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Payable-on-death checking accounts.
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Property and assets that are jointly owned with someone else as joint tenants with rights of survivorship or tenants by the entirety.
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Life insurance proceeds designated to a named beneficiary.
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Funds within IRAs, 401(k)s, or other retirement accounts with designated beneficiaries.
These assets will pass to the named beneficiary or surviving co-owner, regardless of whether you have a Will.
Determining Distribution Without a Will in Florida
The distribution of your assets through intestate succession depends on whether you have living children, parents, or other close relatives upon your passing. Florida Statute Sections 732.101-.109 dictates who has priority:
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The surviving spouse is the first to inherit.
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Children are next in line. In Florida, children include biological and legally adopted children. However, step-children are excluded.
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If a person dies without a spouse or children, living parents inherit next.
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If a person has no spouse, children, or parents, then siblings split the estate equally.
Here are the most common scenarios when you die without a Will in Florida:
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If you have children but no spouse, your children inherit your entire estate.
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If you have a spouse but no descendants (children), your spouse inherits your whole estate.
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If you have a spouse and children with that spouse only, then your spouse inherits your entire estate.
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If you have a spouse and children with that spouse, but the spouse has no children from a previous marriage, your spouse inherits everything.
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The situation changes if you have a spouse and children with that person, but they also have children from another relationship. In that situation, your spouse inherits half of your intestate property, and your children inherit the other half.
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Let's say you have a spouse and descendants with someone other than that spouse. Your spouse inherits half of your intestate property, and your descendants inherit the other half.
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If you have living parents but no spouse or children, your parents inherit your entire estate.
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If you have siblings but no spouse, descendants, or parents, your siblings inherit your entire estate.
These are just the most common scenarios, but additional rules come into play if you die without immediate family. You can find the complete list of Florida heirs in Chapter 732 of the Florida Statutes.
The Risks of Dying Without a Will in Florida
When you don't have a Will, you lack control over who may be appointed as executor. Dying without a Will makes the probate process longer, delaying the distribution of your assets to your descendants. If you want someone other than your spouse or children to inherit some of your possessions, that will only happen if you have a Will.
How to Make a Legal Will in Florida
You can avoid these complications by making an estate plan with a Will. You don't need to hire an attorney and wait months for a final document. FastWill can help you make a Will in Florida in just minutes. Our process relies on Florida attorneys and AI to help you make a perfect Will for your specific situation. Writing a will is still the best strategy to control your own destiny. Get started today.
