When an individual passes away without having a will to provide instruction on how their estate should be disposed of, it is referred to as intestacy. In these situations, the individual is said to have died intestate or without a will.
Every state has its own laws that govern the distribution of the deceased individual’s property when they do not have a valid will. In addition, state laws make the distinction between total intestacy and partial intestacy.
Total intestacy occurs when an individual dies with no valid will in place. In the alternative, partial intestacy occurs when the individual’s will does not dispose of all of their property.
In some states, domestic partners are treated differently in cases of intestacy when compared to legally married spouses. In addition, certain states do not have well-defined statutes outlining the rights of domestic partners, especially those in same-sex relationships.
There are several states that treat registered partners the same as spouses. Most states have rules that are intended to prevent individuals who have malice towards the deceased from receiving an inheritance.
For example, if an individual is responsible for the death of the decedent or did not pay child support for a child who passed away, they will not be permitted to profit from their death under intestacy laws.
In general, a court will attempt to divide the following once all of the debts of the estate are paid off:
- Real estate holdings;
- Life insurance proceeds;
- Bank accounts;
- Securities; and
- Personal property of the decedent.
In general, state laws determine who will be the personal representative or executor of an intestate estate, specifically probate courts. Typically, a surviving spouse will be the first choice.
Usually, adult children are generally next in line to receive under an intestate distribution. It is important to be aware that serving as a personal representative can involve resolving disputes if the beneficiaries have a dispute regarding the estate or contest the will.
In addition, personal representatives may be held personally liable for any claims of fraud or mismanagement made by the beneficiaries. Florida laws outline how a decedent’s property will be distributed to their heirs in a predetermined order in intestacy cases.
Under Florida intestacy laws, any property in the decedent’s estate can be transferred to the heirs or spouse, so long as the property was not actually disposed of by a will. Florida provides the order of succession, or next of kin order, to an intestate estate as follows:
- Surviving spouse and children;
- Parents of the deceased;
- Brothers and sisters, and brother’s and sister’s children; and
- Grandparents.
The interest of a surviving spouse in a Florida estate will largely depend on whether the decedent and the spouse had children and whether the decedent had any children separate from the surviving spouse. If there are no children, the surviving spouse will receive the entire estate.
If the surviving children are those of the decedent and their surviving spouse, the surviving spouse will receive $60,000 of the estate plus one-half of the balance of the intestate estate. However, if the surviving children are of the deceased but are not of the surviving spouse, the surviving spouse will receive one-half of the intestate estate. If an individual has any questions about wills and estates in Florida, they should consult with a local Florida attorney.
Will My Spouse Be Given My Estate if I Die Intestate?
The amount of a decedent’s estate that a surviving spouse will inherit when their spouse passes away depends on several factors. This includes the state laws that determine whether the decedent lived in a community property state as well as which of their other relatives survived them.
If a decedent left no children, their spouse could receive the entirety of the estate, or they may be required to share with the decedent’s parents. If the decedent did leave any children, the surviving spouse will typically share the estate with them, taking half if there is one child and one-third if there is more than one child.
Ultimately, the laws of the state and the surviving family members will determine what a surviving spouse receives after an individual passes away. A decedent might not be the natural or biological parent of the surviving spouse’s children. In this case, those children will not inherit unless the spouses previously adopted the children in order to make them legally theirs.
In this situation, the surviving spouse will inherit in addition to the decedent’s biological and legal children. Typically, intestacy excludes any step-children of a decedent.
This means that if an individual has any step-children or non-biological or legal children they would like to inherit their property, they must make provisions for them in a will or trust. Then, these individuals will inherit when it is time to probate a will.
What Is Intestate Succession?
Intestate succession is how a state distributes a decedent’s estate when they pass away without leaving a will. As noted above, every state has different laws governing how an individual’s estate will be distributed when they do not have a will.
In general, the surviving spouse has the first right. Following the surviving spouse, the decedent’s biological descendants are next to inherit property, with most states following each child’s line until a survivor is located.
If a decedent did not have any children, the next individuals who would inherit property from the decedent’s estate would be the decedent’s parents. If they are no longer living, the next set of heirs would be siblings, then nieces and nephews, and so on.
If there are no eligible family members, the property of the decedent will be escheated or go to the state. This is usually viewed as an unfavorable property distribution result and is one reason many individuals choose to have a will in place before they pass away.
There are two approaches to intestate succession: per capita and per stirpes. The per capita approach provides an equal share to all of a decedent’s surviving heirs.
The State of Florida uses the per stirpes approach, which divides the property in a different manner. For example, if the decedent left four children, each would inherit an equal share.
However, if one of the children is not living, their ¼ share would be equally divided among the deceased child’s heirs.
How Long Does Intestate Succession Take?
The length of the intestate succession process can vary depending on several factors, such as the size of the estate, the ability to locate heirs, and other issues. On average, the intestate succession process will take anywhere from three months to two years.
Do I Need A Lawyer For Help With Intestate Succession in Florida?
If you have any issues, questions, or concerns related to intestate succession in the State of Florida, it is important to consult with a Florida will lawyer. You may believe that you should have inherited property from an individual who did not have a will. If so, your lawyer can advise you of your legal options to receive any interest of an intestate estate that you are owed.
Your lawyer will also represent you in court if you are required to appear for any reason. You may wish to avoid any of the issues associated with intestate succession. If so, your lawyer can help you create an estate plan that will ensure your property is distributed according to your wishes.
