In short: Most American adults have no will; a 2025 Caring.com survey put the share with one at 24%. In Florida, dying without a will means the intestacy statute decides who inherits. Losing capacity without a durable power of attorney usually means a court guardianship. Both are slower, costlier and more public than a basic plan.
If you die without a will
Florida’s intestacy statutes decide who inherits. A surviving spouse takes everything if all of the decedent’s descendants are also the spouse’s and the spouse has no other descendants. If the decedent has descendants who are not the spouse’s, or the spouse has descendants who are not the decedent’s, the spouse takes half and the decedent’s descendants share the rest (§ 732.102). With no spouse, the estate passes to descendants, then parents, then siblings and their descendants, then grandparents and other more distant relatives (§ 732.103).
Homestead follows its own rule. Without a will, a surviving spouse generally takes a life estate with the remainder to the decedent’s descendants, or can elect, within 6 months after the death, to take an undivided half interest as tenant in common instead (§ 732.401). The election is irrevocable.
Someone still has to petition to open probate and be appointed personal representative, and family members may compete for that role.
If you lose capacity without a power of attorney
A spouse or adult child has no automatic authority to manage your bank accounts, sell your house or deal with your retirement accounts. Without a durable power of attorney under chapter 709, the usual path is a guardianship under chapter 744.
Guardianship requires a petition, an examining committee, a court hearing, ongoing reports and court approval for many decisions. It is expensive, slow and public, and it can become a battleground between relatives.
For medical decisions, a designated health care surrogate under chapter 765 avoids most disputes. Florida law does provide a default proxy order when there is no designation, but that can still lead to disagreement among family members.
Why people put it off
The usual reasons are cost, discomfort and the belief that there is not enough to matter. But the absence of a plan often matters most in modest estates, where a house is the main asset and the family cannot afford a long court process.
A basic Florida plan
- A will, or a will with a revocable trust if it fits your situation.
- A durable power of attorney with the specific powers you want your agent to have.
- A health care surrogate designation and a living will.
- Beneficiary and payable-on-death designations on accounts, and a lady bird deed if appropriate for your home.
Lessons
- Without a will, Florida’s intestacy statute picks your heirs, including in blended families.
- Without a durable power of attorney, incapacity usually means guardianship.
- Homestead passes under its own rules either way.
- A basic plan costs far less than a contested probate or guardianship.
Source: Florida Probate Code, chapter 732 (intestate succession), on floridarules.net
Source: Caring.com 2025 Wills and Estate Planning Study
Watch the Video
The Estate Planning Mistake Most People Make
Go Deeper
- Dying Without a Will in Florida: Intestate Succession
- Avoiding Guardianship in Florida with a Power of Attorney
- Florida Surviving Spouse Homestead Rights
Frequently Asked Questions
Who inherits in Florida if there is no will?
The intestacy statute decides. A spouse may take everything or half, depending on whether either spouse has children from another relationship; otherwise descendants, then parents, then siblings.
What happens if I become incapacitated without a power of attorney?
Your family usually has to seek a guardianship in court to manage your finances, which is slower, costlier and more public than using a durable power of attorney.
Does my spouse automatically get my Florida house?
Not necessarily. Without a will, a surviving spouse generally receives a life estate in homestead, with the remainder to your descendants, or may elect a one-half interest instead.
How many people have a will?
Caring.com’s 2025 survey found 24% of U.S. adults had a will.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate, trust, guardianship and elder-exploitation disputes from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
