Intestacy, death without a will or with a flawed or invalid will can be costly. If you’ve visited our website or read our blog before, hopefully you have a strong understanding of the vital importance of estate planning and creating a will. Unfortunately, it is quite common for people to pass away without ever having taken any steps to legally define their wishes for how their estates should be administered and who should inherit their property.
When a person dies without leaving a will, their estate is described as being “intestate.” Intestacy law refers to the process of determining who will inherit the property of a decedent who leaves more property than debts when they die but neglect to leave a will, or they leave a will that does not address key points, in which case partial intestacy may apply. Keep in mind, all estates without a will are required to pass through probate in Florida, and if an estate is insolvent, then intestacy laws will not be applicable.
In the US, intestacy laws vary from state to state, and determining who has the right to inherit certain assets can be an incredibly complex process that raises difficult questions. If you die with both a living spouse and living children, who should inherit your assets? If you have no descendants and your spouse passes before you do, but your spouse has children from a previous marriage, do they have a claim to your estate?
In Florida, intestate succession will depend on the circumstances of the decedent’s living relatives, as well as those of a surviving spouse. For example, if the decedent leaves behind both a living spouse and descendants, and all of the descendants are also descendants of the living spouse, and the spouse has no other living descendants, then the spouse is entitled to the entire probate estate. If the decedent leaves behind descendants and no spouse, then the descendants are entitled to the entire estate. However, if the decedent leaves behind both descendants and a living spouse, and the descendants are not related to the living spouse, then the estate will be split 50/50 between the spouse and descendants. And finally, if a decedent leaves behind descendants who are also all descendants of the surviving spouse, but the surviving spouse also has descendants who are not descendants of the decedent, then the surviving spouse will inherit only 50%. As you can see, the scenarios can become fairly complex without proper planning.
There are a number of different circumstances that can arise and are addressed by Florida intestacy statutes, including scenarios where the decedent does not leave behind a living spouse or children. In such cases, the parents of the decedent generally have first claim to the probate estate, followed by siblings. For the purposes of intestacy, Florida law entitles half siblings to a one-half share as compared to the share of full siblings.
Keep in mind, not all property will be included in the intestate estate. Only property that is part of the probate estate can be included. This usually means property that was in the sole name of the decedent. Assets that are not part of the probate estate may include living trusts, retirement funds, and life insurance proceeds.
Even with clear statutes regarding succession in Florida, having a relative die without leaving a will can lead to a great deal of strife amongst family members. It is always in your best interests to create a will before you die to avoid conflict and other major issues. However, if a loved one passes away without leaving a will, and you believe you have a claim to the inheritance, you will likely need an attorney to advocate on your behalf. Whether you need assistance with planning your estate to avoid intestacy, or if you need representation following the passing of a loved one, please contact the Law Offices of John Mangan today.