It’s true that Florida residents can leave their assets and property to whomever they like in a Will -- children, relatives, friends, or even organizations. But when that Will is ambiguous, can be challenged, or simply doesn’t exist, the formal family ties suddenly become more important. Find out who counts as an heir in Florida probate law, and why it matters.
Nearly all estates have to go through probate in Florida (though some careful estate planning can cause most assets to transfer automatically or to a trust created while the person was alive, avoiding probate). When a person took the time to create a Will before their death, that Will directs who will inherit the property. These distributions aren’t limited to their biological family. A “testator” -- the person writing the Will -- can leave their property to whomever they want, subject to certain restrictions like the elective share and restrictions on the devise of homestead property.
But when someone you love dies without a Will, you can be left wondering what will happen to their property. Under Florida probate laws no-Will estates follow the rules of “intestate succession”, passing the deceased’s property to their heirs (sometimes called next of kin). Under the Florida statutes, intestate succession follows a flowchart, awarding assets based on the parties’ relationships to the deceased. First in line is the decedent’s surviving spouse, though the surviving spouse’s share depends upon the existence and relationships of any descendants of the decedent at the time of death. Many of our clients are surprised (and unhappy) to find out that if the deceased had any children from a prior marriage, then the surviving spouse receives only half of the estate and all of the children receive the other half. Under section 732.103, Florida Statutes, the part of the estate not passing to the surviving spouse (or the entire estate if there is no surviving spouse) passes as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
Who Counts as an Heir?
Families often have household members that don’t fit easily into any category of descendants. Blended families include children and siblings that are not biologically related and live happily with a parent for years without ever establishing a legal relationship. When that happens, who counts as an heir often becomes an issue during the Florida probate process.
Within complex family situations, adopted children are the most straightforward, legally speaking. When the adoption process is completed through a family court in Florida or elsewhere, the adoptive parents become the legal parents of the child, with all the rights and obligations that come with that status. One of those rights is the right to inheritance. Adopted children count as heirs under Florida intestacy law.
Step-Children and Wards
When a deceased person had been a caregiver of other people’s children, it can create a situation where the family assumes these children will inherit when in fact they don’t fit onto the list. This most often happens to step-children who grew up in the deceased person’s household. In other cases, a grandparent or close friend of the child’s parent may take a child on as a ward in a formal or informal guardianship.
When the caregiver passes away and their estate goes to probate, the step-children and wards they cared for may not inherit at all, or their priority may be far lower than they expected (such as when a presumed parent is actually an aunt or uncle). In these situations, the legal relationships control the distribution of estate assets. If the guardian intends to leave assets to their ward, they will need to create an estate plan naming the ward as a beneficiary prior to their death.
Paternity Issues at Probate Court
Things get complicated when a deceased person was never legally determined--whether through an adjudication of paternity or otherwise--to be the parent of a child born out of wedlock. The Florida probate court has the power to make paternity determinations when no other court has done so. However, probate judges may need DNA testing, which can be complicated after the parent has died. If you are a biological child of the deceased, you should speak with an experienced Florida probate attorney to consider your options.
Who Can Challenge a Will in Florida Probate Court?
Even if there is a Will in place when the deceased passes away, Florida’s intestate succession laws could still come into play if there is a Will challenge. Challenging a Will can be necessary when:
The language is ambiguous (such as awarding assets to “my children”) and you need the probate court to interpret it
The Will was created improperly
The estate plan was executed when the deceased was incapacitated or delusional
The awards in the Will are based on fraud or undue influence
Often, the person challenging a Will is not listed as a beneficiary in the estate plan. They may even be explicitly excluded. However, Florida probate law allows any “interested person” to file a petition to challenge a Will. An interested person includes “anyone who may reasonably be expected to be affected” by the administration of the estate. That includes:
The personal representative (or executor)
The beneficiaries included in the Will
Potential intestate heirs
Creditors with claims to estate assets
The Florida probate court will consider any person’s interest in the possible estate before considering the Will challenge, so it is important that the potential heir go through the details of their relationship to the deceased with a probate attorney before filing the petition. If you would not be able to inherit as an intestate heir, as in the case of an unmarried partner or unadopted step-child, you will generally not be able to challenge the Will.
If a loved one dies without a Will or an estate plan excludes someone it shouldn’t, it may be worth considering a Will challenge. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate your loved one’s choices, and your legal relationship to the deceased to decide if there are grounds to challenge it. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.