Updated: Aug 18, 2020
Even if you die without a will, your estate will still be distributed to your heirs. How it is distributed, however, is entirely outside of your power.
Dying without a will is called dying intestate. Each state has their own laws regarding intestate succession. It is generally a streamlined process that follows a set of checks prior to making distributions. If you have assets wrapped up in a living trust, or other non-probate tool, then those assets will follow the distribution manner prescribed by that tool and will not fall into intestate succession. Additionally, any property that you have that is not accounted for in a will or alternative tool such as life insurance policy or retirement accounts with named beneficiaries, also follow intestate succession.
Under Florida intestate succession, if you are survived by your spouse, they will usually inherit all of your estate (minus non-probate assets, if any). This remains true if all of your children are biologically from or legally adopted by that same spouse. If you have children that are not biological children of your spouse at the time of death, then your estate will be split between the children and your spouse.
Without a living spouse, your estate will pass to any living descendants you may have. In Florida, this distribution is “per stirpes.” Per stirpes distribution entitles each living descendant to an equal share of the estate. In example, if you have two children and no living spouse, then each child will get half of the estate. In the same instance, but with a dead child that had two children of their own, one of your children will get half of the estate and the other child’s share will be split evenly between your grandchildren.
In the absence of either living descendants or a living spouse, your assets will divest to your parents in equal shares. If they too have passed, then your estate goes to your siblings and/or their living descendants.
In the absence of surviving parents, siblings, or descendants of deceased siblings, the distribution of assets is much more complicated; fifty percent of the estate is distributed to relatives on the deceased’s father’s side of the family and fifty percent to relatives on the mother’s side of the family.
For a smaller estate, lack of a will may not seem so problematic. For a larger estate, it will likely be necessary to determine where each asset is placed after death. Other considerations to creating a will can come up with troubled marriages. Without a will, a separated but not yet divorced couple will still pass all of their estate to the other spouse. Creating a will prevents this kind of unfavorable disposition.
It is important to remember that Florida does not recognize handwritten, or holographic, wills, and requires a set of proper legal procedures or formalities to create a valid and enforceable will.
The attorneys at Kendrick Law Group are adept at following the procedural guidelines to writing and creating valid and enforceable wills. It is important to protect your assets and know where your estate is going after you pass. If you have any questions regarding the creation of wills or the probate process, contact us today for a complementary strategy session.
Co-written by Spenser Nampon, law clerk