If a Florida resident dies without a will, their property will pass to their closest relatives through the Florida intestate laws. Intestate laws set out a rigid formula for judges to distribute assets to family members to avoid a situation where the deceased person’s assets end up with the state. However, because these laws are inflexible, they rarely carry out the specific wishes of the deceased. Essentially, intestate succession is a type of “backup plan” used by the courts to distribute assets when the intent of the deceased is not known.
What Property Is Affected by Intestate Laws?
Not all assets will pass on to family members through the intestate laws. Only those assets that would be included in a will, had one been created, are subject to the intestate laws. The most common type of property that is not affected by the intestate laws is jointly owned property. This includes real estate, vehicles, bank accounts, or any other property owned by two or more people in a joint tenancy. Since a joint tenancy includes rights of survivorship, the property automatically passes to the surviving owners.
There are also other types of assets that fall outside the scope of a will, including:
- Property placed in a trust;
- Assets in a retirement account;
- Securities in a brokerage account with a transfer-on-death designation;
- Assets in a bank account with a payable-on-death designation; and
- Life insurance proceeds.
In each of these cases, the assets will pass to the named beneficiary of the account.
The Specifics of Florida’s Intestate Laws
When someone dies without a will in Florida, the court will identify all surviving family members to determine who will inherit the deceased’s property. In some cases, this is an easy endeavor; however, that is not always the case. Below is a summary of how the intestate laws dictate the distribution of assets based on the deceased’s surviving family members.
In the most straightforward cases, there is just one person or group of people who qualify to inherit the intestate property.
- If the deceased leaves behind children but no spouse, the children will receive everything;
- If the deceased leaves behind a spouse but no children, grandchildren, or great-grandchildren, the spouse will inherit everything;
- If the deceased has surviving parents but no spouse or descendant, the parents inherit everything; and
- If the deceased leaves behind siblings but no spouse, descendant, or parents, the siblings inherit everything.
Intestate laws can quickly get more complex. For example, if someone leaves behind a spouse and children, the spouse inherits everything unless some of the children are from another relationship. If that is the case, the spouse would inherit half of the intestate property and the deceased person’s descendants would inherit the remaining half.
For the purposes of intestate succession, the court will treat children who were adopted by the deceased in the same way it treats birth children. Children who were conceived but not yet born by the time the deceased passed away will also receive an intestate share. However, foster children and stepchildren are not eligible for an intestate share unless the deceased adopted them before their death. Along those lines, children whom the deceased put up for adoption and were adopted will not be considered “children” under the intestate laws. The exception to this is when a step-parent legally adopts their spouse’s child, in which case that child will not be disinherited from their biological parent’s estate.
How to Avoid Florida Intestate Laws
If, after reviewing the Florida intestate laws, you determine that you would like your property distributed in another manner, there are two ways to avoid intestate succession. First, you could arrange your assets such that they fall outside the scope of the intestate laws. This would include adding loved ones’ names to bank accounts, deeds, titles, or other assets. While this alternative is time-consuming, you will be able to avoid the intestate laws for most classes of assets.
Perhaps the easier alternative is to speak with a Florida estate planning attorney and have them create a will. While there is no requirement to work with an attorney when creating a will, most people choose to do so. This is because the rules governing the distribution of property can be complex, and even a small mistake can frustrate the very purpose of creating a will. For example, an unclear will may lead to a familial dispute, which could further delay the distribution of assets. Another benefit to speaking with an estate planning legal practitioner is that a lawyer will assess your other potential needs and put a comprehensive plan in place to ensure they are carried out.
While everyone’s situation is unique, one option used by many estate planning legal team involves a combination of creating a will and rearranging or retitling certain assets, so they automatically transfer upon your death. This way, your loved ones can avoid the time and expense of the probate process, which can also delay the distribution of estate assets.
Contact the Florida Estate Planning Lawyers at Beller Bustamante, P.L. to Schedule a Consultation
If you do not have an estate plan or it has been years since you last updated it, give the knowledgeable Florida estate planning legal team at Beller Bustamante, P.L., a call to set up a consultation. Our estate planning lawyers have more than 30 years of experience helping clients from all backgrounds and of varying net worth create estate plans to effectuate their wishes. Whether you just need a will or are looking for a comprehensive estate plan comprising trusts, powers of attorney, and advanced healthcare directives, we can help. To learn more about the services we provide and to schedule a no-obligation consultation, you can reach us at 904-288-4414 or through our online form.