What Happens During Probate in Florida When There’s No Will?

When a loved one passes away without a will in Florida, their estate must still go through the probate process. Dying without a valid will is known as dying “intestate.” In these situations, Florida’s intestate succession laws determine who inherits the estate assets.

In this article, we’ll walk you through what happens during probate when there’s no will in Florida.

Florida’s Probate Process

Probate is the court-supervised legal process for settling a deceased person’s estate, regardless of whether they had a will. The primary purpose of probate is to ensure the decedent’s assets are properly distributed to the rightful heirs or beneficiaries.

Here are the key steps in the Florida probate process:

1. Filing a petition with the probate court to open the estate
2. Appointing a personal representative to administer the estate
3. Identifying, gathering, and valuing the decedent’s probate assets
4. Paying the decedent’s outstanding debts, taxes, and administrative expenses
5. Distributing the remaining assets to the heirs according to Florida’s intestate succession laws

The entire probate process is governed by the Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes.

Intestate Succession in Florida

When someone dies without a will in Florida, their probate assets are distributed according to the state’s intestate succession laws. These laws are designed to distribute the estate in a manner that likely aligns with how most people would choose to leave their assets to their loved ones.

Under Florida’s intestate succession statutes (§§ 732.101-732.111), the decedent’s surviving spouse and descendants are given top priority. Here’s a simplified breakdown:

• If there is a surviving spouse and no descendants, the spouse inherits everything.
• If there are descendants and no surviving spouse, the descendants inherit everything.
• If there is a surviving spouse and descendants (and all descendants are also the spouse’s), the spouse inherits everything(this may not be true of the decedent’s homestead).
• If there is a surviving spouse and descendants (and at least one descendant is not the spouse’s), the spouse inherits 50%, and the descendants inherit 50%.
• If there is a surviving spouse and descendants (and all descendants are also the spouse’s, and the spouse has descendants who are not the decedent’s descendants), the spouse inherits 50%, and the descendants inherit 50%

If the decedent has no surviving spouse or descendants, the intestate estate goes to their parents, siblings, grandparents, or more distant relatives following a strict order set forth in the statutes.

It’s important to note that intestate succession laws only apply to probate assets, not non-probate assets.

Probate vs. Non-Probate Assets

Probate assets are those assets owned solely in the decedent’s name at death with no beneficiary. Common examples include:

• Real estate titled solely in the decedent’s name or as a tenant in common
• Personal property like jewelry, furniture, and collections
• Bank accounts or investment accounts in the decedent’s name alone with no transfer on death provision

Non-probate assets are those that pass to a new owner outside of probate by operation of law or contract. These assets are not subject to intestate succession laws. Examples include:

• Property held in joint tenancy or tenancy by the entirety
• Bank or brokerage accounts with payable-on-death (POD) or transfer-on-death (TOD) beneficiaries
• Life insurance policies or retirement accounts with designated beneficiaries
• Assets held in a living trust

How the Court Appoints a Personal Representative When There’s No Will

The personal representative is the individual appointed by the court to oversee the administration of the probate estate. In the absence of a will naming an Executor, the court appoints one based on Florida’s order of preference. The surviving spouse has first priority, followed by the person selected by a majority in the interest of the heirs, and then the heir to the nearest degree.

The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries. Their key responsibilities include:

• Identifying and protecting the decedent’s assets
• Providing notice to creditors and paying valid claims
• Handling any litigation involving the estate
• Preparing and filing tax returns
• Distributing assets to the proper heirs

If the personal representative breaches their fiduciary duties, they can be held personally liable for any resulting damages to the estate.

Potential Complications in Intestate Probate

When someone dies without a will, there is greater potential for complications and disputes during probate. Some common issues that may arise in an intestate estate include:

• Disagreements among heirs over asset distribution
• Difficulty locating and valuing certain assets
• Increased likelihood of creditor claims against the estate
• Unintentionally disinheriting a loved one

In a testate estate, a well-drafted will provides clear instructions for distributing assets, which can help avoid many of these complications.

Small Estate Alternatives to Formal Probate

Florida law provides simplified procedures for settling small estates that can help families avoid formal probate. These alternatives include:

1. Disposition of Personal Property Without Administration: This process is available if the decedent’s personal property is valued at less than $10,000 (not including amounts needed to pay funeral expenses and medical bills from the last 60 days). The person entitled to the property can submit a simple affidavit to collect the assets, without any formal court proceeding.
2. Summary Administration: If the value of the entire probate estate (not including exempt property) is less than $75,000 or the decedent has been dead for more than two years, the estate may qualify for summary administration. This expedited process allows the estate to be settled without a personal representative.

To determine if your loved one’s estate qualifies for one of these streamlined processes, it’s best to consult with a knowledgeable probate attorney.

Avoiding Probate in Florida

While the Florida probate process is relatively efficient compared to many other states, most people prefer to spare their loved ones the stress and expense of probate altogether. With proper estate planning, you can ensure your assets pass directly to your intended beneficiaries without the need for court involvement.

Some common probate avoidance strategies include:

• Creating a living trust and transferring assets to the trust during your lifetime
• Designating beneficiaries on bank accounts, investment accounts, and retirement plans
• Owning property jointly with rights of survivorship

A comprehensive estate plan tailored to your unique circumstances can provide peace of mind knowing your loved ones will be taken care of without the burdens of probate.

Navigating Florida probate law after the loss of a loved one can feel overwhelming, especially when there is no will to provide guidance. At Vollrath Law, we understand the challenges you are facing, and we’re here to help. Our team can guide you through the probate process as efficiently as possible, so you can focus on healing.

If you have lost a loved one without a will in Florida, contact us today to schedule a consultation and learn how we can assist you.