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The loss of a parent is an incredibly difficult and emotional time. It can also be a stressful time if your parent passed without communicating his or her final wishes regarding his or her estate. The State of Florida does provide guidelines, however, to prevent confusion and conflict if a person dies “intestate,” which means without a will.

The intestacy laws in Florida describe how an estate will be administered and distributed if the decedent did not leave behind a valid will.

Who Is In Charge Of Managing The Florida Estate? 

Just as if there was a will, the estate will need to pass through the state probate court process. However, because there is no will naming a personal representative to manage the estate, the court will appoint one to oversee the distribution of the estate. If you or another member of the family would like to be appointed as personal representative, you can petition the court. The probate court will examine petitions and issue letters of administration to an individual or entity who will be responsible and qualified to act on the estate’s behalf.

What Is The Inheritance Hierarchy Under Florida Intestacy Laws? 

The Florida intestacy laws offer guidelines for estate distribution based on the surviving members of the decedent’s family. If your parents were married at the time that one of your parents died without a will, then the deceased parent’s estate will go to the surviving spouse if all of the deceased parent’s descendants are also descendants of the surviving spouse. If, however, the surviving spouse or the deceased parent has offspring from other relationships, then the surviving spouse will receive one-half of the estate and the decedent’s children will share the other half of the estate.

If your parent was unmarried at the time of his or her death (single, divorced, or widowed), all descendants of the deceased parent will share equally in his or her estate.

If your parent had any descendants who pre-deceased him or her, his or her heirs will still be included in the estate distribution. For example, if your mother had three children – you, your brother, and a sister who died several years ago – your mother’s estate will be distributed as follows: one-third to you, one-third to your brother, and one-third to your sister’s descendants (her share would be split among her heirs if she had more than one descendant).

Not all assets will be included in the “estate” for the purposes of probate. Many assets are considered “non-probate.” Property that is titled as a joint tenancy with the right of survivorship, for example, will simply pass to the joint tenant by operation of law, without any need for the court. In addition, many bank accounts, retirement accounts, and insurance policies have beneficiary designations. If your parent named beneficiaries on these accounts, they will pass to the named beneficiaries without being considered part of the intestate estate.

What If My Parents Owed Debts When They Died? 

Before any assets can be distributed to heirs, the personal representative of the estate will first have to satisfy any valid creditor claims filed in the estate. Once all valid creditor claims have been satisfied, then the remainder of the estate will be distributed to the decedent’s heirs-at-law. However, if the decedent owed more than the total value of his or her estate, the estate is considered insolvent and there will be nothing for heirs to inherit.

How To Avoid The Challenges Of Intestacy? 

Many people never get around to drafting a will or creating any estate plan. A common thought is: Why bother? My wife/husband will just inherit everything anyway. As explained above, Florida intestacy laws sometimes do not allow the full estate to pass to the decedent’s spouse if the spouse has descendants that are not also the descendants of the surviving spouse. Another common feeling is that the family will just work things out amongst themselves. Under Florida law, again, this assumption is mistaken. The estate will need to be distributed formally through probate court and in accordance with state laws. Quite often, the intestacy laws do not create the result that the decedent or the family expected.

Ask A Pinellas County Estate Planning And Probate Attorney For Assistance

How best to avoid the challenges of intestacy? Meet with a Pinellas County probate and estate planning attorney. Estate planning does not have to be complicated. An experienced attorney like the ones at Kira Doyle Law, can help your parents (or you) draft simple, clear documents that communicate your wishes and name a personal representative. Even having the most basic documents in place will ease stress for surviving family members and allow them to be confident that they are following your wishes and honoring your legacy.  If you have recently lost a parent, we encourage you to contact our office in St. Petersburg, FL, at 727-537-6818, to schedule an appointment with our lead probate and estate planning attorney.