Without a will, you may be surprised who will get your property under Florida law.

In Florida, what property is inherited by your family if you die without a will (“intestate”) depends on what type of property you own at your death. Property is passed to your heirs in two ways: either outside of probate (“non-probate”), or through a court-supervised process called “probate”.

Property Passing Outside of Probate:

In many cases you can choose your beneficiary and avoid intestacy laws. You can choose who will inherit your property in a few ways. You can 1) own property as joint tenants with right of survivorship; 2) name a beneficiary on a beneficiary designation form (i.e. life insurance policies, bank accounts, retirement funds such as IRAs); 3) name someone as a remainderman on a deed for real estate; and/or 4) retitle the asset in the name of a trust.

All of these steps take some planning and considering many relevant factors, for example the ages of the beneficiaries and the size of the assets.

When is a Will Relevant?

A will is only relevant when you have to go through probate. If you die with property in your name alone, and did not pass as described above, property will need to be conveyed via the court-supervised probate process.

The court will first determine whether a valid will was executed. When you do not leave a valid will, the State of Florida imposes its own rules.

Who Gets Your Probate Property Without a Will?

The property is divided between your spouse and your descendants in various ways. A “descendant” is a person in any generational level down from you which includes children, grandchildren, etc.

• Spouse and no descendants: All to spouse.
• Spouse and descendants (descendants are both you and your spouse’s): All to spouse.
• Spouse and descendants (descendants that are yours but NOT your spouses): 50% to spouse and 50% to your descendants.
• Spouse and descendants (but where spouse has their own children too): 50% to the to spouse and 50% to your children. None to your spouse’s children.
• No spouse but descendants: If you have no spouse, then your descendants inherit in equal shares.
• No spouse and no descendants: If you died unmarried and with no children, your parents inherit your estate. If your parents are not alive, then your siblings will inherit under intestacy laws.

It is extremely rare for the State of Florida to take your assets. There are further laws to allow one to identify more remote relatives if the above referenced family members are not alive.

There are other rules relating to homestead property, exempt personal property, and an allowance to the surviving spouse and any descendants or ascendants whom the decedent supported during the probate administration period.

Examples of Unintended Consequences of Intestacy:

• You have had no contact with adult child for years? Every adult child will inherit property.
• You remarried after your spouse passed away? Expect your new spouse will have to split your property with your adult children.
• You have lived with someone as husband and wife but never legally married? There is no common law marriage. They would inherit nothing.
• You raised a child in your home, such as a cousin-in-law, friend or step child? They will not inherit over your blood relations, no matter how long they have lived with you or how close you are with them.

By learning about the laws of intestacy imposed by the State of Florida, you may be more motivated to rethink your estate plan. How will each piece of property you own will pass on to a loved one? Be proactive in leaving your property to those you love.

Rose Marie K. Preddy, Esquire, owns the Preddy Law Firm, P.A. in Jacksonville, Florida. Ms. Preddy has over 20 years’ of legal experience representing families and other clients in estate planning, guardianship and probate matters. Please do not hesitate to contact Rose Marie with any questions.