The Consequences of Dying without a Will in Florida

Dying without a willEveryone who is married, has children, or has substantial assets should consider preparing a will. With a will, you can direct who gets your property instead of giving the state of Florida the authority to distribute your property. With a will, you can direct who raises your children. If you don’t have a will, the state of Florida will decide who raises your children.

There are many other advantages to preparing a will. You can select someone you trust to be the personal representative of your estate. You can save on federal estate taxes. You can provide for the control of your business when you’re gone. You can create companion legal documents to provide for your family, your children, and charities that you want to have some of your earnings.

What happens to your property if you don’t have a will in Florida?

If you fail to prepare a will, your property is distributed according to the intestate laws of Florida.

The property that passes depends on the type of property and how it is titled. The property that is part of the estate and passes based on the intestate laws can include your home, cars, bank accounts, business, retirement benefits, jewelry, prized possessions, and any other asset you own.

The property that is not part of the estate generally includes any property titled as joint property with right of survivorship. If you own a home with your spouse and the property is titled as tenants by the entirety, then your home will not pass through intestate succession. The home will pass to your spouse. Life insurance policies with named beneficiaries pass to the beneficiary. Life insurance policies that do not have a named beneficiary do pass through the Florida intestate success laws.

Retirement accounts such as pensions and annuities may pass directly to a named beneficiary if they are titled properly. Otherwise, your accounts could pass through the estate laws of the state of Florida.

Who is entitled to the assets that pass through the Florida intestate laws – because you did not have a will?

Your heirs and the amount they receive are based on who survives you. The following relatives receive your estate in the following ways – if you do not have a will:

  • Your spouse.
    • If your spouse survives you and you have no descendants (children, grandchildren, etc.), then your wife will receive the entire estate.
    • If your spouse survives you and you have children or grandchildren, then your spouse still receives the entire estate.
    • If you have surviving descendants who are not lineal descendants of your spouse, then your spouse receives one-half of the intestate estate.
    • If you and your spouse have any surviving descendants and your surviving spouse also has his/her own descendants who are not your descendants, then your spouse receives one-half of the intestate estate.
  • The other heirs. If there is no surviving spouse or your spouse is not entitled to all of the intestate estate, then the part of the estate that does not go to the spouse is distributed to the surviving hears as follows:
    • If there are no descendants, then the parents receive the balance of the intestate estate.
    • If there are no descendants and no surviving parents, then the intestate estate is distributed to the siblings and their descendants.
    • In some scenarios, the grandparents may be entitled to part or all of the intestate estate.
    • There are other scenarios that our skilled Indian River County lawyers can explain.
  • Half-bloods. “When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half-blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.”
  • Afterborn heirs. “Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.”

There are additional Florida laws that determine the rights of adoptees and adoptive parents. If the rights of a parent were terminated, then they generally cannot receive any part of the decedent’s intestate estate.

What happens to your minor children if there is no will?

Whether you have a will or not, if the other parent survives your death, then that parent will have the right to raise the children that both of you had together. If a co-parent dies before you, then your minor children need someone to care for them. Care includes ensuring the children have a place to sleep, food to eat, attend school, have social relationships, and all the other love, care, and discipline children need to become mature happy adults.

Parents generally name the same people to be guardians of their minor children in their wills. If the co-parent dies before you, then a will is the best way to appoint someone to raise your children. Guardians may be other relatives. They can also be friends. Normally, most parents select guardians who also have children – though having children is not a requirement. You should check with the guardians you name to be sure they are willing to raise your children.

If you do not name a guardian through your will, then Florida will determine who the guardian should be. Ideally, another relative such as a grandparent or aunt will request approval to be the guardian of your minor children. If nobody seeks court approval (which takes time and costs money), then the state may place your children in a facility for children without parents.

Speak with an Experienced Indian River County Probate Lawyer Now

At Lulich & Attorneys, our lawyers are seasoned probate and wills lawyers. We help Sebastian and Vero Beach residents prepare their wills and any other legal documents they need – to be ready for their old age or the time they pass on. We explain the benefits of having a will and the consequences of not having a will. To discuss all aspects of estate planning, will preparation, and probate; call us at 772-589-5500 or use our contact form to schedule an appointment.