Intestate Probate Estate: What will happen if you don’t have a will

January 15, 2014 by

Even if you have never signed a last will and testament, you have one. If you are intestate, which means that you do not have a valid will or other estate plan, the Florida probate code is your "will" and it states who your assets will go to.

Do you agree with the Florida Probate code on who should get your assets? Earlier this month Downton Abbey fans learned that if Robert had never found Matthew's estate plan, the majority of his estate would have gone to his infant son, George. Matthew wanted his wife Mary to be his sole heiress so it's a good thing Robert found the estate plan. In Florida, if the original will cannot be found at the time of your death, the presumption will be that you intended to destroy it and you may be considered intestate. An earlier blog discussed where to store your original estate planning documents so this doesn't happen to your loved ones.

Matthew may not have known that the law said the majority of his estate would have gone to his infant son, George. Who are your heirs at law in Florida? Some heirs may surprise you. Here are some examples of what could happen without a valid will:

  • If you are married and you have no children, your spouse will receive 100% of your intestate probate estate.
  • If you are married and you have children with your spouse (but no step-children) your spouse will receive 100%.
  • If you are married but you have children from a prior marriage, your spouse get 50% and your children get 50%.
  • If you are not married, your children will receive 100% of your intestate probate estate.
  • If you are not married and you don't have any children or grandchildren, your parents (or the survivor) receive your intestate probate estate.
  • If you are widowed, and you have no family (i.e. no children, grandchildren, parents, siblings, nieces, nephews, grandparents or other family members), your intestate probate estate will go to your late spouse's family.

How Step-Children Change your Intestate Probate Estate

In this scenario, Henry and Alice are married. They have one daughter together, Diana. Henry has two children from a prior marriage, Samantha and Mary.

Family Tree for Florida Intestate Succession

  • If Henry passes away intestate, Florida law states that his wife Alice will receive 50% of his estate. The remaining 50% will be split between his three children, Diana, Samantha and Mary.
  • If Alice passes away intestate, her husband Henry will receive 50% and her daughter Diana will receive 50%. If Diana passes away first, Henry would be sharing with Alice's parents. If Alice's parents are gone, Henry would be sharing with Alice's siblings.

If you don't agree with the Florida Probate Code, you need to design an estate plan that will meet your goals.  This article is not intended to provide legal advice or encourage anyone to do estate planning without the guidance of an experienced estate planning attorney. Call us at 813-852-6500 to schedule a free 30-minute consultation with an estate planning lawyer.