Today we’re going to focus on the idea of an intestate estate, what that is, and what it means. If you are debating whether you should invest in an estate planning attorney to plan your estate, it’s important that you are familiar with the idea of an intestate estate and why you should go ahead and retain that attorney right away.
Intestate Estate: What is it and What Does it Mean?
What Is An Intestate Estate?
When we talk about an intestate estate we are referring to the estate of someone who died without leaving a legal will. This person is said to have died intestacy. This can mean that they died without a will at all or that they died with a will but that will is not a valid legal document.
What Makes a Will an Invalid Legal Document?
A will is considered to be invalid in the state of Florida in a number of situations, these include:
- A holographic will or a will that has been handwritten without a witness present.
- A nuncupative will or a will that has been made verbally with or without a witness present.
- A will that has not been signed by the testator (the exception to this is if an individual is not physically able to sign their own will, in this case, someone else may sign the will for the testator and subscribe the testator’s name at the end of the will so long as the testator is present and gives their permission. The individual signing the will must not be one of the witnesses to the signing.)
- A will that has not been signed in the presence of TWO witnesses. These witnesses must also sign the will at the same time in the presence of each other.
- A will that has been written by someone who is not of sound mind or that can be proven to have been written by someone who is not of sound mind.
- A will that has not been written in accordance with Florida rules for creating a valid last will and testament.
- A will that was written under undue influence.
- A will that incorporates any type of fraud.
What Happens When Someone Dies Intestacy?
When someone dies intestacy, the probate court appoints an estate administrator who is responsible for determining the distribution of the assets of their estate. The administrator will compile the assets of the estate and – as a traditional executor would do – pays any liabilities. Once this is done, the administrator will then distribute the assets among individuals who have been identified as beneficiaries.
How Are Beneficiaries Identified in Intestacy?
In the case of an intestate estate, the administrator of the estate must identify and locate any possible heirs to the estate. Once located, these beneficiaries will receive assets from the estate according to state intestate succession laws.
Identifying Assets and How to Distribute Them
The probate court is then charged with identifying the assets of the decedent’s estate and how they will be distributed among beneficiaries.
In the state of Florida, intestacy laws state that:
- The surviving spouse of the deceased will receive 100% of estate assets IF the decedent has no living lineal descendants.
- The surviving spouse of the deceased will receive 100% of estate assets IF the decedent has descendants with the surviving spouse.
- If the decedent leaves behind a living spouse and lineal descendants that are NOT with the surviving spouse, the spouse will receive half of the estate and the remaining half will be divided among those lineal descendants not shared with the spouse. If any of those lineal descendants die prior to the deceased, their immediate heirs will receive the share of the estate intended for the descendant who predeceased the deceased. This is referred to as “per stirpes” distribution.
- If there is no surviving spouse, the estate will be divided among the lineal descendants of the deceased.
- If there is no surviving spouse and no lineal descendants, the estate assets will pass to any ascendants of the deceased (their parents or grandparents, for example) and “collateral” relatives (siblings, aunts, uncles, etc.) In this incidence, the assets of the deceased would pass to their parents first, however, if their parents are deceased, those assets would then pass to siblings of the deceased.
- If none of the heirs that are identified above are living at the time of the decedent’s death, assets of the estate will pass to heirs of the decedent’s grandparents per stirpes. Half of the estate’s assets would go to the relatives on the maternal side of the family and half would go to relatives on the paternal side.
- Decedents of the deceased are disqualified from inheritance if they are convicted of involvement in the murder of the deceased.
- An ex-spouse who has completed divorce proceedings with the decedent is disqualified from intestacy inheritance. This does not include spouses who are separated but not divorced or spouses who are going through divorce proceedings at the time of the decedent’s death.
The Actual Probate Process
The actual probate process, or the opening of the estate, taking care of outstanding debts, the distribution of assets, and closing the estate, is the same as it would be in a traditional probate case. The biggest difference between an intestate estate case and a probated case with a will in place is that an intestate estate there is no time spent on trying to prove the validity of the will of the decedent.
Want to Avoid an Intestate Estate?
If you want to avoid an intestate estate it’s time to consult with an estate planning attorney. If you’re in the St. Petersburg, Florida area and are looking for an estate planning attorney, Weidner Law can help. Just pick up the phone and dial 727-954-8752 to start planning your estate with one of our attorneys today!