No Last Will in Florida

Ideally, you want to have a last will and testament, but that is not always the case. If someone dies without a will (referred to as “dying intestate”) does not mean the the state of Florida gets all the probate estate assets. If someone dies without a will, Florida Statute 732 provides who gets what by essentially writing a last will and testament for you.

Florida Statutes sections 732.102 and 732.103 create a “pecking order” of who gets the estate assets. For example, if the deceased has no surviving descendants, (children, grandchildren, etc.), the surviving spouse gets the entire probate estate. If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse gets the entire probate estate. However, if there are one or more surviving descendants of the deceased who are not lineal descendants of the surviving spouse, the surviving spouse gets half of the probate estate, with descendants splitting the other half of the probate estate. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, but the surviving spouse has one or more descendants who are not descendants of the deceased, the surviving spouse gets half of the probate estate. If there is no surviving spouse, the descendants of the deceased share the probate estate. If there are no descendants, then the deceased’s surviving parent(s) split the entire probate estate. And on and on it goes.

In intestate cases, the Florida probate courts typically require a sworn-to Affidavit of Heirship. The purpose of this affidavit is to inform the court of the relatives of the deceased in order to determine the rights of the those relatives to the probate estate assets. Preparing the affidavit can be complex. Often it requires an heir search, which can be expensive, time consuming, and confusing. It is important you speak with an experienced lawyer who can explain your rights and obligations and assist you through the probate process, including the preparation of the Affidavit of Heirship.