Who Inherits Property if You Don’t Have a Will?
By: Barry E. Haimo, Esq.
January 17, 2014
What if there is no will – [Video] https://www.youtube.com/watch?v=R3XQSCENCrs
What does intestate and testate mean – [Video] https://www.youtube.com/watch?v=j-OvcCw75xI
Whether or not you have a validly executed Last Will and Testament, your estate will go through Probate (a/k/a “estate administration”) to the extent that you die owning assets in your name. “Probate” is the legal process through which a deceased person’s affairs are formally settled. First, an attorney must be retained to open up an estate w/ the court. A person is then appointed to administer the estate, which is often called a Personal Representative or Executor. The Personal Representative works with the attorney and is responsible for overseeing the entire process, beginning with locating a validly executed will. The Personal Representative must then identify and gather all the deceased person’s assets, file an inventory with the court and notify the deceased’s creditors of the pending estate. It’s a lot of work. Next, assets are then pooled together and used to satisfy creditors’ claims. Finally, the balance of assets are ultimately distributed to the proper beneficiaries, who – as you now know from the crash course on wills – are determined by the will or may be decided for you by the state in which you reside. If you cannot find a will, if a will is invalid, destroyed, or for any other reason that a valid will is not accepted by the court, the estate will proceed as if the deceased died without one. This is called intestate, and it invokes state law to fill in the gaps for you. If you have a will, it’s called testate. In either case, your estate will go through probate.
In Florida, who inherits a deceased person’s estate is determined by statute; called “the Laws of Intestacy”. To summarize, generally the surviving spouse will inherit a deceased’s estate entirely if he or she had no children. If the deceased did have children, the spouse and those children, collectively, will share equally in the estate. If there is neither a surviving spouse nor children of the deceased, his or her share will descend upwards to his or her parents equally, or the survivor of them. If none of the foregoing are then living, then the deceased’s estate will pass to his or her siblings. If none, his or her estate will descend upwards to his or her grandparents, equally, or to the survivor of them.
Similarly, if none of the foregoing are then living, the deceased’s estate will descend downwards to uncles and aunts, and then to cousins, etc. The pattern in intestacy is such that the deceased’s assets are inherited by surviving spouse entirely or shared equally with his or her children, going upwards to parents, back down to siblings, back up to grandparents, and then back down to aunts and uncles. If there are no then living aunts or uncles, it will move laterally to grand uncles and aunts before descending downwards to second and third cousins, etc. It’s probably acceptable for a close-knit nuclear family, where it’s understood that assets will be devised to the surviving spouse and then children equally.
It is commonly misunderstood that estates will be inherited by the state easily and quickly. However, the state only inherits when a decedent dies without living family. The estate assets are tied up on court registry until they are found and only if they cannot be found or are not then living will such assets be inherited by the state.
The bottom line is that Florida statute dictates to whom a decedent’s property passes and who should be appointed as guardian and personal representative of an estate. It’s probably acceptable for a close-knit nuclear family, where it’s understood that assets will be devised to the surviving spouse and then children equally. However, most families are dynamic and have complexities that render the intestacy statute far from adequate.
Barry E. Haimo, Esq.
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