Florida Rules on No Wills

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When a person dies without a valid will, Florida law steps in and directs how the individual's assets will be distributed. The person who died, referred to as the "decedent," is considered "intestate." In addition to providing which heirs receive what portions of the estate, the intestate laws also dictate how a personal representative will be appointed.

Personal Representative

A personal representative is an individual, or sometimes a bank or trust, that is responsible for administering the decedent's estate. The personal representative's responsibilities may include gathering all the decedent's assets, paying creditors, and distributing assets to the heirs. When the decedent dies without a will, the court will appoint someone to serve as the personal representative. If the decedent has a surviving spouse, she will normally take this role, although the spouse may decline to serve. When the spouse is not an option, the heirs may agree to elect a personal representative. If the heirs cannot agree, the probate court will hold a hearing to appoint someone for the role.

Probate Process

Regardless of whether the decedent left a will or died intestate, the probate process is essentially the same. After the personal representative is appointed, he will gather all of the assets of the decedent subject to probate, meaning any assets owned solely by the decedent and not automatically transferred to someone else. The representative must then publish a public notice informing creditors of the decedent's death and contact any known creditors. The representative will pay valid claims and expenses for administering the estate as well as file a final tax return. Finally, the remaining assets will be distributed and the personal representative will close the estate.

Intestate Succession

When someone dies without a will, the Florida intestate law lists the order of priority for distributing assets. The distribution is determined by the number of living descendants, such as children or grandchildren. When the decedent has a living spouse but no descendants, the spouse will receive the entire estate. If the only living descendants are also the descendants of the living spouse, such as children of the decedent and the spouse, the spouse will still receive the entire estate. However, if the decedent had other descendants not related to the spouse, such as children from a prior marriage, the spouse will receive half the estate and the descendants will receive the other half. If the decedent was not married, the descendants receive the entire estate. When there are no descendants and no spouse, the decedent's parents will inherit the estate. Finally, when no close family members are living, the assets will be distributed to more remote family members, such as aunts or cousins.

Multiple Generations

When an estate is distributed to descendants, Florida law provides for how the estate will be divided among the generations. Generally, the estate will be divided equally among all of the descendants. However, this becomes more complicated when the decedent has children and grandchildren. The estate is split evenly at the first generation, meaning that if the decedent had two children, each child would receive half the estate. However, if one of the children is deceased but had children, the decedent's grandchildren, those grandchildren would take their parent's share. In other words, the living child would take half of the estate, while the children of the deceased child would evenly split the other half of the estate.


About the Author

Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."

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