Articles Posted in Intestacy

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death.  However, in Florida, individuals have an additional estate planning tool: adult adoptions.  Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult.  The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption.  However, a court can excuse this requirement.  Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement.  Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal.  This means that in Florida an adult is able to adopt another adult regardless of age.

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When a decedent passes away, individuals who are named in the decedent’s will are entitled to receive property as it is specifically devised in the will. Moreover, when a decedent dies in possession of property that is not devised in his or her will, that property passes through intestacy (i.e., outside of the will). But, who is entitled to receive that property? Who is considered an “heir?” How does one find out if he or she is an heir or beneficiary?

Under Florida law, “heirs” or “heirs at law” are those persons who are entitled to the estate of a decedent under the statutes of intestate succession. Fla. Stat. § 731.201(20). In Synder v. Davis, the Supreme Court of Florida interpreted the term “heirs” in Article X of the Florida Constitution to include not just family members who would take property at the death of the decedent, but also those who could take under intestacy statutes. Effectively, the Florida Supreme Court interpreted the word “heirs” broadly to include all potential takers under the intestacy statutes.
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Whether an individual dies testate (with a will) or intestate (without a will), there are always expenses and obligations that must be paid by the estate. Whether the estate is in Palm Beach, Miami or Fort Lauderdale, each estate has funeral costs, there are probably some medical expenses, there may even be back taxes that must be paid. Those expenses and obligations are paid prior to the beneficiaries receiving their share, if any, of the remaining estate. Florida Statute 733.707 governs the order of payment:

Class 1 – Costs of the estate administration and fees of the personal representative and attorneys.

Class 2 – Reasonable funeral expenses, not to exceed $6,000.

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