What Happens When Florida Resident Dies Without A Will?

August 12, 2014

By DeLand Attorney Richard “Jake” Jackson

There is a common misconception that if you die without a Will, the State will take your property. That is not true. Another misconception is that you don’t need a Will unless you are very wealthy. Whether you need a Will or not depends on your particular circumstances, including your family composition, whether you have minor children, the type and amount of your material assets, and how your assets are titled.

A Will can accomplish many things: It directs who will inherit from your Estate and what they will receive; it can declare whom you wish to be Guardians of your children if there is no surviving parent; it can establish a Trust with restrictions on how theshare of a Beneficiary (a person named in the Will to receive a portion of the estate) will be handled and at what point that share will be distributed to the Beneficiary; it designates who will be the Personal Representative (the person named in the Will who will have the responsibility for administering the Estate); it can express your wishes regarding funeral and burial arrangements; and it can make a personal statement to those who survive you.

If you are a Florida resident and you die without a Will, Florida Law provides what will happen to your property. This is called the Law of Intestate Succession, and it is found in Chapter 732 of the Florida Statutes. If you have a surviving spouse, that spouse will be entitled to either ALL or HALF of your Estate assets that are subject to distribution. If you have no surviving descendants, or if all of your surviving descendants are also descendants of your spouse and your spouse has no other descendant, then your spouse will be entitled to ALL. If you have any surviving descendant who is not a descendant of your spouse, your spouse is entitled to HALF and your descendants are entitled to HALF. If you have one or more surviving descendants, all of whom are descendants of your spouse, and your spouse has any descendants who are not your descendant, then your spouse is entitled to HALF and your descendants are entitled to HALF.

If you do not have a surviving spouse, then your Estate assets that are subject to distribution will go to your descendants. That means that distribution will be made to your children in equal shares. If any of your children died before you and they have surviving descendants, their descendants will receive the share that they would have been entitled to.

If you have no surviving spouse and no surviving descendants, then your Estate assets that are subject to distribution will go to your other surviving relatives: your parents, or the descendants of your parents (your brothers and sisters, nieces and nephews, and so on); or your grandparents, or the descendants of your grandparents (your aunts and uncles, cousins, and so on). If you have no surviving kindred (grandparents or their descendants), then the distribution would be made to the kindred of your last deceased spouse.

It is only if you have no surviving spouse, no surviving kindred, and no deceased spouse’s surviving kindred, that your Estate would be distributed to the State. The legal term for this is “escheat.” Florida’s Escheat Law is found at Section 732.107 of Florida Statutes.

If you die without a Will and you have minor children, if the other parent dies or becomes incapacitated then a Court will have to decide who will be the Guardians for the children. Without a Will that gives your preferences, the Court may have to guess what you would have wanted if there are competing claims for who should be appointed. When each child reaches 18 years of age, he or she will be entitled to receive his or her entire share of the Estate with no restrictions. If you had a Will, you could have directed that some or all of the child’s share would be distributed when the child reaches a later age, graduates college, or upon some other event.

If you have any questions about Wills, Trusts, Estate Planning, or Probate, please contact the Law Office of Richard S. Jackson.Attorney Richard “Jake” Jackson has been serving the legal needs of the Central Florida community in Volusia County since 1985. Call for an appointment at (386) 738-1111. Office in DeLand, Florida.

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