A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. 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.
If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.
WHAT HAPPENS IF THERE IS NO WILL?
Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the probate assets of a decedent who died intestate.
If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):
· If the decedent was survived by a spouse but left no living descendants, 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.
· If 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), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
· If 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), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.
· If the decedent was not married at the time of death but was survived by one or more descendants, 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 the deceased child was survived by that child’s own 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 decedent’s deceased child.
· If the decedent was not married at the time of death and had no living descendants, 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.
The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. 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 the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.