When there’s not a will, there’s still a way

Posted by Overstreet Law | Oct 11, 2017 | 0 Comments

Losing a loved one is never easy, and it can be even more overwhelming when that loved one fails to leave a will behind. When there is no will to name a personal representative or beneficiaries, it can be difficult for a family to know where to begin when it comes to handling the decedent's property. However, when there's not a will, there's still a way!

Below, we will briefly discuss what typically happens when a person, known as the decedent, dies without a will; how intestate succession laws work; and how to get started if you have a relative who passes away without a will.

Fortunately, every state has laws that govern how property and assets will pass to the heirs when a decedent's estate is not disposed of by a valid will. This is called intestate succession. Intestate succession laws provide guidance for determining beneficiaries of the decedent's assets that would have been determined by the decedent's will. Not all assets are governed by intestate succession laws. Some assets, including, but not limited to, property held in the name of a living trust or jointly owned property, are not subject to intestate succession and pass from the decedent to their beneficiaries by separate procedures regardless of the presence of a will.

In Florida, determining who inherits the decedent's assets through intestate succession depends on the familial status of the decedent at the time of death.*

If the decedent was married: Generally speaking, if the decedent is survived by a spouse but no lineal descendants (children, grandchildren, great-grandchildren, etc.), the spouse will inherit all of the decedent's assets. If the decedent is survived by a spouse and children, the assets will pass to the spouse if all of the children are also children of the surviving spouse. If the spouse is not the parent of the decedent's children, the spouse will inherit one-half of the decedent's assets and the decedent's children will inherit the remaining half of the assets.

If the decedent was not married: If the decedent was survived by children, but no spouse,  the assets will pass to the decedent's children, per stirpes. If the decedent is not survived by a spouse or lineal descendants, the assets pass to the decedent's parents. If the decedent's parents are no longer living, the siblings of decedent will inherit their assets. Because intestacy laws only recognize legal relatives, unmarried couples do not inherit their partner's assets through intestate succession.

It is important to know that intestate succession does not automatically transfer the assets from the decedent to the heirs. The decedent's estate will require probate in order to transfer the assets to their heirs.

If you have a relative who passes away without a will, consult with an experienced probate attorney who will help you understand Florida's intestate succession laws and ensure the decedent's estate is properly distributed through the probate process.

* Please refer to Chapter 732, of the Florida Statutes for further information regarding intestate succession.

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