Asset Exceptions to the Laws of Intestate Succession

In the broadest definition, intestate succession is the court-mandated distribution of a deceased individual’s assets prompted by the lack of a will. When a person dies, the spouse and other heirs receive assets that fall under intestate succession laws, which provide for the disposition of assets based on the decedent’s familial circumstances at the time of his or her death.

Florida residents that die before creating a legally binding will leave the distribution of their assets up to the Florida judicial system and pre-determined intestate succession laws. Although in general, intestate succession means the same thing in every state, each state has its own unique laws governing precisely how the succession of particular assets should occur. There are a number of assets, though, that will be exempt from the intestate succession process.

Assets Excluded From Florida Intestate Succession

Intestate succession law only includes only the assets that you would have distributed through a legally binding will. There are many assets that do not pass through a will, and thus are exempt from intestate succession rules. For example, if the owner of a life insurance policy dies without creating a will, the life insurance financial payouts are distributed to the beneficiary listed in the policy, instead of the appropriate heirs as determined by intestate succession laws.

Here are some of the key assets excluded from Florida intestate succession:

Life Insurance

Life insurance reimbursements represent a prominent asset that passes down to heirs. The question for life insurance boils down to the name of the primary and secondary beneficiaries. If the insured receives life insurance proceeds, then the proceeds become part of the deceased’s estate. Life insurance payouts to beneficiaries are not subject to creditor claims and thus, do not fall in a deceased’s probate inventory.

Revocable Trusts

Experienced estate planning attorneys use revocable trusts to avoid probate. If you create a revocable trust, the trust does not become part of the probate estate and the assets held in the trust never comprise a part of probate inventory. Nonetheless, under Florida code, (F.S. §732.201-732.2155), probate courts can include trust assets to calculate a surviving spouse’s estate compensation.

Property Jointly Owned

Jointly owned property should not pass to intestate succession heirs if other tenants-in-common are still living. If the joint property ownership includes the right of survivorship, then the property automatically passes to the legal tenants that form the joint property ownership. Bank accounts are the most common type of this intestate succession asset.

Other assets excluded under Florida intestate succession laws include funds accumulated in an IRA and 401K, as well as other retirement accounts (which normally pass to a designated beneficiary). Securities or other assets held in a transfer-on-death account also avoid intestate succession laws in Florida.

If you need help understanding this complex part of Florida law, do not hesitate to call the experienced estate planning attorneys at Luis E. Barreto & Associates.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.