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Understanding more about how the probate process works – IV

On Behalf of | Sep 23, 2015 | Probate

In a series of ongoing posts, our blog has been providing some basic background information on what people can expect from the probate process in Florida. The goal in doing so is twofold: to help alleviate some of the anxiety that people might be experiencing at the thought of having to enter a courtroom and to clarify any misunderstandings.

While all of the prior posts on this subject have presumed that there was a will, today’s post will take things in a slightly different direction by exploring what happens in the probate process when there is no will.

Dying intestate

As we’ve discussed, when a person leaves a valid will, it will not only designate a personal representative to manage their estate, but also name the beneficiaries among whom their assets are to be divided.

When a person either does not have a will or the will they execute is subsequently found to be invalid, they will be considered intestate. What this essentially means is that their assets will be distributed among their “heirs” — or relatives — in accordance with a scheme set forth by state law.  

While many people believe that dying intestate will result in the state essentially taking all of their property, this is very rarely the case. Indeed, so long as the deceased has at least one living heir, their assets won’t go to the state. Indeed, the biggest issue is that assets may not be distributed in the manner the decedent would have otherwise wanted.

Order of priority

While a complete breakdown of the order in which assets will divided if a decedent dies intestate is beyond the scope of a single blog post, we’ll take a look at the first three levels of the aforementioned distribution scheme.

  1. If the decedent is survived by their legal spouse and had no living descendents (children, grandchildren, etc.), everything goes to the surviving legal spouse.
  2. If the decedent is survived by their legal spouse, has one or more living descendents (all of whom are descendants of the married couple), and the surviving spouse has no additional living descendents (not related to the deceased), everything goes to the surviving legal spouse.
  3. If the decedent is survived by their legal spouse, has one or more living descendents and the surviving spouse has additional living descendents (at least one of whom is not related to the deceased), half goes to the surviving legal spouse and half goes to the descendants of the decedent.

If you have questions or concerns concerning intestacy or the probate process in general, please don’t hesitate to consider speaking with an experienced legal professional as soon as possible.


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