Many people plan their estate succession by creating a Last Will and Testament that specifies how they want their assets distributed after they die. Unfortunately, it’s a common misconception that creating a Will takes care of everything and avoids the requirement for the estate to go through the Florida probate process. While certain assets don’t require probate, others do, and if the heirs are not aware of this, they may be in for a surprise. Making effective plans for your estate in advance can spare your family a lot of stress and potential expense later.

What A Will Does

A Last Will and Testament is a legal document that, among other things, names the parties you wish to distribute your assets to after your death. In most cases, the Will also names a personal representative who will oversee the estate until the terms of the Will are satisfied and all other legal requirements for settling the estate are met.

What Assets Can Transfer Without Florida Probate?

In general terms, assets that have a named beneficiary or a pay-upon-death designation, like life insurance or bank account, won’t require probate process. Assets jointly owned with right of survivorship can also be transferred or liquidated without probate. Determining which assets can be transferred without going through the probate process can depend largely on the way the asset is titled and any applicable laws governing the specific asset type, e.g. retirement accounts.

What Happens In Probate Court?

The Florida probate process, in short, has the court overseeing the verification and distribution of estate assets. The Will, if there is one, is legally validated; heirs and creditors are identified and located; debts are paid, and remaining assets are liquidated or distributed to the beneficiaries, either according to the terms of the Will, or according to Florida law pertaining to intestate succession.

Estate Planning To Avoid Complications 

Creating a valid Will is an essential part of ensuring your assets are distributed to the intended heirs. Some don’t make it as far as leaving a Will, and when they die intestate, the legal process of determining their heirs becomes more complicated. Others attempt to create a D.I.Y. Will which may later be found invalid by the Florida probate court. Working with an experienced estate planning attorney now can help lighten the load for your heirs after you’re gone.

Florida Probate & Estate Planning Attorneys Can Help

The Probate, Wills, Trust, and Estate attorneys at Overstreet, Miles, Cumbie & Finkenbinder are here to help you create or review your will, and make sound decisions regarding estate planning. Setting up a legally valid will and estate can help your heirs through the difficult time after you pass, and gives you the assurance that your assets will be distributed as you intend. Call or contact us online for a confidential consultation and learn more about protecting your estate assets and your heirs from unnecessary complications and expenses. Effective estate planning today helps your family’s future and removes a significant set of worries from the picture.

When someone dies without a will things can get complicated. Who is responsible for making decisions? How do you know who inherits which assets? 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 their loved one’s property.

Fortunately, every state has laws that govern how property and assets of a deceased person, known as a decedent, will pass to their heirs when a decedent dies without a valid will. 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.

Under Florida law, the decedent’s estate in inherited according to a prescribed hierarchy of family members.

  • Spouses – If the decedent was married and had no children, grandchildren great-grandchildren, etc., called lineal descendants, the spouse inherits all of the decedent’s assets. The same is true if the decedent had lineal descendants whose living parent is also the surviving spouse of the decedent. 
  • Children – When the decedent has children whose living parent is not the surviving spouse, the assets are split between the decedent’s spouse and children: The surviving spouse inherits half, and the children divide the other half. 
  • Parents – In cases where the decedent has no surviving spouse or lineal descendants, the decedent’s parents are next to inherit the assets of the decedent.
  • Siblings – Finally, if the decedent had no surviving spouse, lineal descendants, or living parents, any surviving siblings would share the inheritance.

Intestate Succession Laws Cover Some, But Not All Cases

Assets that are jointly held (between spouses or with rights of survivorship), or held in a living trust will are not subject to intestate succession. Those assets move from the decedent to the joint spouse by operation of law, or from trust to the beneficiaries by a separate legal process.

Because intestate succession laws only recognize legal relatives, unmarried couples do not inherit their partner’s assets through intestate succession.

Probate May Be Required 

It is important to know that intestate succession does not automatically transfer the assets from the decedent to the heirs. The decedent’s estate may require probate in order to transfer the assets to their heirs. An experienced probate attorney can help you get through the legal process smoothly.

The probate lawyers at the Kissimmee Law Firm of Overstreet, Miles, Cumbie & Finkenbinder are highly experienced in helping families through these challenging circumstances. Call us at 407-847-5151 for a confidential consultation, and we’ll tell you how we can help your family navigate the probate process smoothly.

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.