Do not pass away without a will.

Passing away without a valid will, intestate succession

There is a lot of information available on how important it is to have an estate plan, regardless of your wealth, health, or age. Yet most of the Americans die without a will, i.e. they die intestate. What happens with the estate in such situations will depend on the default rules of the state where the deceased had his permanent home (domicile) at the time of death. These rules are called intestate succession.

Florida Intestate Succession

In Florida, the spouse is the preferred heir. If there are no surviving descendants, the spouse will inherit the entire estate. The same goes for when there are surviving descendants, all of whom are common to both spouses, and the surviving spouse does not have any other descendants from different relationship. Fla. Stat. § 732.102. If either spouse has descendants that are not common to both spouses, the surviving spouse gets one half of the estate and the descendants of the deceased person get the other half. If there is no surviving spouse, the descendants will take the entire estate. Fla. Stat. § 732.103.

If there is no surviving spouse or descendant to take, the estate goes to the parents of the deceased. If they cannot take, then the estate goes to the brothers and sisters and their descendants. Next options, in the following order of priority, are grandparents, aunts and uncles and their descendants, and relatives of the last deceased spouse of the decedent. No member from each group must be able or willing to before the members of the following group can be considered. If there is no one from the foregoing persons to take, the estate goes to the state.

If the line of the descendants is broken (the closest heir died before the deceased person, but was survived by children), the inheritance will be saved for next generation. Fla. Stat. § 732.104. Adopted children are generally treated as natural children of the adoptive parents and have no inheritance rights of their natural parents. Fla. Stat. § 732.108. In the situation where the property goes to the brothers and sisters, the siblings that share only one common parent will take only half as much as those having both parents common. Fla. Stat. § 732.105.

What Property Passes?

Not all property will pass according to the above-mentioned rules. Property held in tenancy by entirety or joint tenancy will pass automatically to the other tenants, life insurance proceeds will pass to the designated beneficiaries, property transferred to a trust will be distributed according to its terms and so on.

What Are the Pitfalls of Intestate Succession?

Generally, dying without a valid will (or other instruments) means that you have little control over how your estate will be divided and how your close ones will be provided for. The intestate succession does not reflect gifts received during life or merits or disrespects of your heirs and may result in considerable imbalance in the distributions. Moreover, if part of the estate consists of real property that is in a different state than was the domicile of the deceased, more than one state’s intestate succession rules may apply. Finally, in a will you may designate a person that will represent and administer the estate (in fact, that may be the only provision in the will). With intestate succession, this option is again lost and the default rules mandate that the spouse, person chosen by majority in interest of the heirs, nearest heir, or court appointed person will take on this, respectively. Simply, do not pass away without a will in place. Bart Chepenik, JD, LL M (Tax) 305-613-3548 and Brad Trushin, Esq. 305-981-8889 are willing to help make your estate planning experience easy.