If you are lucky enough to amass property during your lifetime, you should make arrangements for who will inherit it after your death. In Florida, you can create a will to choose your beneficiaries. If you don't have a valid will, your estate may pass according to Florida's intestate succession laws to people you may not want to inherit your property.
Writing a Valid Will
A will sets forth how your property will be distributed after death. It may also name an executor, called a personal representative in Florida, who is responsible for administering the estate. To be valid under Florida law, a will must be in writing and you must be at least 18 years old and mentally competent when you create it. State law requires you to acknowledge and sign the document in the presence of two witnesses, who must also sign it.
A Spouse's Inheritance Rights
Florida law does not permit you to disinherit a surviving spouse. If you leave your spouse completely out of your will, whether intentionally or inadvertently, your spouse is still entitled to inherit from the estate under the law. This right of election must be made no later than six months after your surviving spouse is notified that the estate is being processed by the probate court, or within two years after your death, whichever is sooner. The Florida probate court will award your spouse's inheritance, called the elective share, out of the estate assets before distributions to any other beneficiaries are made. Under Florida law, a spouse's elective share is 30 percent of the value of the entire state.
Inheritance Through Intestate Succession
If you die without a valid will, your estate will pass according to the state's intestacy laws. In Florida, your surviving spouse inherits your entire estate if there are no surviving children, or if any children also are your surviving spouse's children. If you are survived by children who are not those of your surviving spouse, your spouse inherits half of the estate and the children inherit equal shares of the remaining half. If there is no surviving spouse, your children inherit equal shares of the entire estate. If there is no surviving spouse or children, intestate succession requires distribution of the estate to other surviving family members, such as parents or siblings. If no family members survive or can be located, the entire estate goes to the State School Fund of Florida.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
Some estate assets already have a designated beneficiary. All property owned jointly by husband and wife, known as tenants by the entirety, automatically passes to the surviving spouse upon the death of the other. The same is true for any property owned jointly with a right of survivorship with parties other than a spouse. If, for example, three siblings owned a vacation property jointly with a right of survivorship, the deceased sibling's share would be split equally among the surviving siblings. Other non-probate assets include life insurance policies with named beneficiaries and bank accounts classified as payable or transferable upon death.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.