Estate Planning 101: What Happens if You Pass Away Without a Will?

A Will is one of the most important documents you can prepare in your adult life. It constitutes the basis of every estate plan and as such is instrumental in securing your legacy and a stable financial future for your family after your passing. Yet, despite the enormous importance of this step, more than half of Americans don’t have any estate planning documents in place. This holds true both for ordinary people but – perhaps more surprisingly – to some celebrities as well such as Prince and Aretha Franklin.

However, having a Will is essential regardless of your wealth. If you leave no Will, your estate and assets will be divided according to a lengthy process overseen by a court. The distribution of your money and belongings will be governed by Florida inheritance laws and not your wishes. A long time may pass before your assets find their way to your loved ones. Bitter arguments and family feuds may ensue.

In order for you to better understand the importance and the advantages of preparing a Will, we will provide an overview of what happens with a person’s estate if they die without a Will or any other estate planning solution in place.

Florida Probate Process

When a person dies without a Will in Florida, his or her estate is considered intestate. All the assets, property, and personal belongings will be divided and distributed in a process called probate. In the case of intestate estates, both the rightful heirs as well as the size of their inheritance is determined by intestate succession laws found in the Florida Probate Court.

The probate process starts when the probate court appoints a personal representative of the deceased person’s estate. The role of a personal representative is to manage the transition of assets to the heirs. First, however, a personal representative will gather and appraise all the decedent’s assets. Then, he or she is obliged to notify creditors who may have some claim in the estate about the probate proceedings so that they can reclaim their debts. After all financial obligations of the estate have been paid, the personal representative will also pay any pending estate taxes. Only after that, he or she will proceed with the actual distribution of the remainder of the estate among the heirs.

Florida Intestate Succession Laws
Florida Probate Code describes a certain order of priority in which the probate assets will be distributed among the deceased person’s heirs. This order can be summarized as follows:

  • Spouse: The spouse will inherit the entirety of the probate estate if there are no living descendants (the word descendant may refer to children, grandchildren, and more remote descendants in any generational level down the descending line) or if there are one or more descendants from the marriage of the deceased person and the spouse.
  • Spouse and descendants: If the deceased is survived by the spouse and their descendants, but the spouse also has more living descendants out of who at least one is not also a descendant of the deceased, the spouse will inherit 50% of the estate.
  • Descendants: If the deceased wasn’t married at the time of death and is survived by one or more descendants, the descendants will inherit the entirety of the estate. The assets will be divided among the descendants according to the pertaining laws.
  • Parents or siblings: If the deceased wasn’t married at the time of death and isn’t survived by any descendants, the assets will be inherited by the decedent’s parents. If parents are no longer alive, the estate will be divided among the deceased person’s surviving siblings.
  • More remote heirs: If none of the close relatives mentioned above are alive, the assets will be inherited by more remote heirs according to pertaining intestate succession laws.

Consult a Probate Attorney

Florida probate and succession laws are complicated. That’s why, whether you’re considering creating an estate plan or if you find yourself in the middle of probate proceedings as one of the heirs of an estate, you should consult an experienced probate attorney. At Luis E. Barreto & Associates, P.A. we will carefully analyze your situation and advise regarding the best possible solution to your legal needs related to estate planning and probate. Contact us today.

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.