What Happens if You Die Without a Will in Florida?

You may be surprised just how many people die without a Will in Florida every year. Or maybe you are wondering what happens to their assets and debts after their death. This blog will explain what happens if you die without a Will, how the Florida probate courts decide who will inherit your belongings, and what you can do to change that.

First Steps When Someone You Love Dies Without a Will

A Last Will and Testament, and other related estate planning documents, can provide helpful insight into your loved one’s last wishes. It may include funeral and burial instructions, fiduciary designations, and, of course, the distribution of the person’s estate. But if someone you love dies without an estate plan or Will, it may be up to you to make those decisions on their behalf. First, work with the funeral home to choose a memorial that honors their memory. Then be certain to get several copies of the person’s death certificates, including the cause of death. You’ll need those to begin the Florida probate process of dividing up their assets and paying off their debts.

How the Court Decides What Happens if You Die Without a Will

If you die without a Will in Florida (and most other states), the state’s “intestacy laws” control what will happen to your assets, and who the Florida probate court can appoint to oversee the distribution of your estate. These intestacy laws are the default assumptions that apply whenever there is no will to cover some or all of your assets. Generally speaking, Florida intestacy laws provide for your final expenses and certain debts to be paid, and then divide up your remaining property and assets among your closest living relatives. They also apply after a successful Will challenge unless the petitioner provides a valid earlier version of your estate plan.

If you die in Florida without a trust or another probate avoidance method that covers all of your assets, your loved ones will need to go through the probate process before they can receive their inheritances. Once a probate matter is started, a judge will:

• Name someone close to you as the personal representative of your estate (often the petitioner who filed the estate administration petition)
• Issue letters of administration authorizing the personal representative to act on behalf of your estate
• Oversee the personal representative’s work creating an inventory of assets and debts
• Review the division of your property according to intestate law
• Resolve any disputes among creditors or family members over who gets what property or money

When you have a validly executed Last Will and Testament, it will guide the personal representative and the probate court as they divide up your estate. But when you die without a Will, the Florida intestacy laws fill in the gaps, controlling who will receive an inheritance, and how much.

Who Inherits Your Assets if You Die Without a Will in Florida?

One important step in administering an estate without a Will, is the identification of your descendants, or next of kin. Essentially, the personal representative needs to draw the family tree to find your closest then-living relatives. Under the Florida intestate succession laws, your family will generally inherit in the following order, though there are certain important exceptions not listed below which can particularly impact the inheritance of surviving spouse and descendants depending upon the relationships involved:

1. Surviving Spouse of the decedent.
2. Descendants of the decedent.
3. Parents of the decedent.
4. Decedent’s brothers brothers and sisters and the descendants of deceased brothers and sisters.
5. One-half to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
   1. To the grandfather and grandmother equally, or to the survivor of them.
   2. If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

In basic terms, if you think of your family tree with your children below and parents above, it will be up to your personal representative to trace first down and then up the family tree to find your first living relative.

The more complicated your family tree is, the more difficult it will be for your personal representative to determine who will inherit your assets. Step-children, half-siblings, adoptions, second marriages, and divorces can all make the process more difficult. On the other extreme, if you die without close relatives, your personal representative may have to work harder to trace the line of descendants and find someone to inherit the property, to avoid the assets passing to the State through a process called escheatment.

What Happens to Your Debts After Your Death?

Before your assets can be transferred to your next of kin, your personal representative will need to satisfy some – but not necessarily all – of your debts out of the estate’s assets. Your personal representative will need to identify and notify all your creditors – from the hospital providing end-of-life care, to your credit card companies – of your death. Those creditors have 30 days from notice (or 3 months from publication) to file a claim to satisfy their debts from your estate. The personal representative can contest any bad or uncollectable debt, and then prioritize and pay off your debts according to state law. Once those debts have been paid, the remaining assets can be split between your descendants according to their value.

Why Drafting a Will or Trust Helps

Working with an experienced estate planning attorney to draft and execute a Last Will and Testament helps your loved ones know what to do after your death. In addition to guiding who will inherit which assets, your Will can also:

• Designate a personal representative you want in charge of your estate
• Leave property to people other than your direct descendants (such as step-children and friends)
• Exclude estranged family members
• Award specific properties to particular individuals, organizations, or charities
• Avoid liquidating family assets
• Express your funeral and burial wishes

Because your Will outlines all your assets, it can also aid your personal representative in promptly identifying, locating, and valuing your property, which can speed up the probate process.

Other forms of estate planning, like trusts, can go further. By removing assets from your probate estate, these strategies can reduce or even eliminate probate barriers to distributing your assets to your loved ones. If you prefer, you can also set specific criteria for when and how those assets will be paid.

Get Started Drafting Your Last Will and Testament

If you don’t want Florida’s intestacy laws controlling what happens to your assets, the estate planning lawyers at Harrison Estate Law, P.A., can help. Please contact us online or via email or call 352-306-3261 to schedule a free consultation. We have extended evening and weekend appointments available by request. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call.