A Last Will and Testament states how you would like your assets divided among family, friends, and organizations after you pass away. If you pass away without a will, however, your belongings and financial affairs will still need to be distributed to your family according to state law. Below, we discuss the process of dividing your estate if you pass away without a will.
Yes. Your estate must go through probate if you pass away without a will. However, not all your possessions may need to go through probate. The court will determine which items in your estate qualify for probate (referred to as a “probate asset”). Probate assets may be bank accounts, insurance policies, real property individually owned, or assets without a named beneficiary or a “right of survivorship” clause.
When you pass away without a will, your estate is called “intestate.” Florida has set up a standard procedure to divide assets for intestate estates, following Florida’s Intestate Laws as described in Chapter 732 of the Florida Statutes.
Florida’s Intestate laws are meant to guide the probate court through the process of distributing your estate to your relatives if you pass away without a will. The intestate line of succession distributes assets as follows (after all debts are paid):
1. Surviving spouse
4. Siblings and their families (such as nieces and nephews)
5. Blood relatives
6. The state
The only scenario where your entire estate would become government property (called “escheat”) is if you pass away without a will and no one is eligible to receive your assets based on the line of succession described above. For your assets to go to the state, you would have no surviving spouse, children, parents, siblings, or any blood relative. While it is possible that your estate could be turned over to the state, it is unlikely.
If you pass away and have a child under 18, the child’s other parent would become the child’s guardian. If there is no surviving partner or biological parent, another family member may petition to become the child’s guardian.
If you co-owned real property with another person, your property would go to the surviving owner listed on the deed. If you were the sole property owner, the property would be distributed following Florida’s Intestate laws after the probate process concludes. In situations where a surviving spouse or child currently resides in the home, the home may be considered a “life estate” and would allow the current occupants to say in the house even if they are not in the line of succession.
Creating a comprehensive estate plan that includes a will is the best way to ensure your estate is distributed as you desire. The Law Offices of Brian W. Hurd can help you craft an encompassing estate plan that allows your beneficiaries to be taken care of after you pass away. Call our office at 321-453-5007 to set up a consultation.