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Intestacy: What Happens If You Die Without A Will


By writing a will, you take control of who will receive your property when you die. However, many people continue to go without any sort of estate plan, so when they die their property is distributed according to Florida law. This is called dying “intestate.” Florida’s intestacy laws will determine who takes a share of your estate and how much.

Not all Assets Pass through the Probate Court

You might own some assets that would not have passed through a will if you had one. For example:

  • Life insurance proceeds are paid to the beneficiary designated on the policy
  • Retirement accounts like IRAs and 401(k)s pass to the designated beneficiary
  • Any property in a living trust will pass according to your instructions in the trust
  • Property owned in joint tenancy with right of survivorship will not pass through probate; instead, the joint owner takes the entire property automatically at your death

However, most other property will pass through the probate court according to the state’s intestacy rules.

Assets Pass to Close Relatives

Without a will, assets will generally pass to your spouse and children. The law is particularly interested in whether either you or your spouse have children from a previous marriage, since that will often determine whether children get a share of your estate. Let’s run through some common scenarios:

  • If your spouse has died and you have children, then your children will receive everything in equal shares. For example, Ann, a widow, has three children: Ben, Carrie, and David. These three children will each take a third of her estate.
  • If your spouse survives you but you leave no children, your spouse receives all of the estate.
  • If your spouse survives you and you have children with him or her, then your spouse receives the entire estate.
  • If your spouse and children are living, and your spouse has children with another person, then your spouse takes half of the estate, and your children divide the other half. For example, Dan’s wife, Morgan, survives him. They had one child, Esther. Morgan also had children from a previous marriage. In this example, Morgan takes 50% of Dan’s estate and Esther takes the other 50%.
  • If your spouse and children are living, and you have children with another person, then your spouse takes half of the estate and your children inherit the other half.
  • If you have no children or spouse, then your parents will inherit the estate if one or both of them is living.
  • Siblings will inherit if you have no spouse, descendants, or parents living.

Adopted children are treated like biological children for the purpose of intestate succession. However, you must have actually adopted the child. Foster children and stepchildren do not automatically receive an intestate share.

Confused? Speak with an Estate Planning Attorney in Florida

Instead of relying on Florida’s intestacy laws, you can take control of the process and decide precisely who receives what. To start your estate plan today, contact an estate planning attorney at Millhorn Elder Law Planning Group. We offer a free consultation, which you can schedule by contacting us at your convenience.



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