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Who Gets My Property If I Don’t Have a Will?

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March 14th, 2022

Posted in Probate & Guardianship,Wills, Trusts & Estate Planning

Many people believe that if they die without a will, the state (or government) gets their property.  While this is possible, it is very unlikely to occur.  So, what happens to your property if you die without a will?

When a person dies without a will, they die intestate (whereas dying with a will is called testate).  The Florida Statutes, under Part I of Chapter 732, titled Intestate Succession, presents a hierarchy of classes of people who are to inherit your “intestate estate” if you do not have a will.  That hierarchy is as follows:

First, the statutes look to whether you have a surviving spouse, and if so, your surviving spouse receives your entire intestate estate under the following scenarios:

  • you have no surviving descendants
  • you have surviving descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant

Your surviving spouse receives one-half of your intestate estate under the following scenarios:

  • you have one or more surviving descendants who are not lineal descendants of the surviving spouse
  • you have one or more surviving descendants who are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of yours

The portion of your intestate estate that does not pass to your surviving spouse, or your entire intestate estate if there is no surviving spouse, passes as follows:

  1. to your descendants
  2. if there are no descendants, to your father and mother equally, or to the survivor of them
  3. if none of the above exist, to your brothers and sisters and the descendants of deceased brothers and sisters (i.e., your nieces and nephews)
  4. if none of the above exist, then one-half goes to your paternal kindred and one-half to your maternal kindred in the following order
    1. grandfather and grandmother equally, or to the survivor of them
    2. if none of the above exist, to uncles and aunts and descendants of your deceased uncles and aunts (i.e., your cousins)
    3. if there is either no maternal kindred or no paternal kindred, then to the other kindred who survive, in the order stated above.
  5. If no kindred exist, the intestate estate goes to the kindred of your last deceased spouse as if that spouse had survived you and then died intestate entitled to the estate

All inheritances pass per stirpes.  Furthermore, special rules exist for half-blood relatives, afterborn heirs, and for adopted persons and persons born out of wedlock.

Finally, when a person dies intestate without being survived by any person entitled to a part of the intestate estate as laid out above, the intestate estate passes, or “escheats”, to the estate, at which time the property is sold and the proceeds are paid to the Chief Financial Officer of the state and deposited in the State School Fund.

To ensure that you have control over who gets your property upon your death, you should consult with an experienced estate planning attorney.

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