What is a Will?
A Will is a writing, signed by the decedent and witnesses, that meets Florida law requirements. In a Will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.
WHAT HAPPENS IF THERE IS NO WILL?
Someone who dies without a valid Will dies “intestate.” Even if the decedent dies intestate, the probate assets are rarely turned over to the state of Florida. The state would take the decedent’s assets only if the decedent had no heirs.
If the decedent died intestate, a couple of examples of how the decedent’s probate assets will be distributed to the decedent’s heirs are as follows: (found in Part I, Chapter 732 of Florida Statutes):
- Suppose the decedent was survived by a spouse but left no living descendants. In that case, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents, and more remote descendants.
- Suppose the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse). The surviving spouse has no additional living descendants (who are not a descendant of the decedent). In that case, the surviving spouse receives all of the decedent’s probate estate.
- Suppose the decedent was not married at the time of death but was survived by one or more descendants. In that case, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if that child has surviving descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the deceased child.
- Suppose the decedent was not married at the time of death and had no living descendants. In that case, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
- Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.
There are certain exceptions for homestead property, some personal property, among other exceptions to the distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws.
For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if a spouse and descendants survived the decedent, the surviving spouse takes a life estate in the property. The descendants receive the decedent’s homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within six months of the decedent’s death to receive an undivided one-half interest in the homestead property instead of the life estate provided specific procedures are timely followed.