Probate Process in Florida Without a Will (2024 Guide)

The probate process in Florida without a will is far more complex than when a valid will is present. When an individual passes away without a will, their estate is considered “intestate,” which means the distribution of their assets and the selection of a personal representative to handle their affairs are determined by Florida law rather than their personal preferences.

Understanding Intestate Succession in Florida

When a person dies without a will, Florida’s intestacy laws come into play. These laws outline a specific order in which family members are entitled to inherit the deceased person’s assets. The state’s intestacy rules generally prioritize close family members — for example, a surviving spouse and children — but the distribution process can become complex if there are multiple heirs or if the deceased had no immediate family members.

Steps in the Florida Probate Process Without a Will

The probate process without a will in Florida involves several stages, each designed to ensure the proper handling and distribution of the deceased person’s assets.

These steps include appointing a personal representative, identifying and valuing assets, paying debts and taxes, and parceling out the estate to the lawful heirs.

1. Filing the petition for administration. The probate process begins with a petition filed in the county where the deceased person resided. This document requests that the court open a probate case for the estate and appoint a personal representative to oversee the process.
   Without a will, any eligible family member can petition the court to act as the representative, although Florida law grants priority to certain relatives, such as a surviving spouse or adult children.
2. Appointing a personal representative. If the deceased did not name an executor (personal representative) in their will, then the court selects one. The estate representative plays a critical role in managing the estate, ensuring all assets are collected, and facilitating the payment of debts and final expenses.
3. Identifying and securing assets. The estate representative is responsible for locating, identifying, and securing all assets owned by the deceased. These may include bank accounts, real estate, personal belongings, and other valuable assets. If necessary, appraisals are conducted to establish the fair market value of certain properties, especially real estate and high-value items.
4. Notifying creditors and paying debts. Under Florida law, the estate’s representative has to notify potential creditors of the probate proceedings. Creditors have a set time limit, generally three months from notification to file claims. These claims include debts like loans, credit cards, and medical bills, which must be reviewed and either approved or denied by the representative.
5. Paying taxes. In addition to creditors, the estate may owe federal taxes. The estate representative must ensure that final income tax returns are filed and that any estate tax obligations are met. The estate tax applies only to estates exceeding a particular threshold, which is set by federal law and can change annually. Florida does not impose a state-level estate tax, so only federal taxes generally apply in most cases.
6. Distributing remaining assets. After all debts, expenses, and taxes are settled, the rest of the assets are distributed to the rightful heirs as specified by Florida’s intestacy laws. This distribution follows a strict order of inheritance.
   If the estate includes real estate or other significant assets, the estate representative may need to sell them to divide the proceeds among the heirs, especially if there are multiple beneficiaries with an equal claim.
7. Closing the estate. Once all assets are distributed and final accountings are filed with the court, the probate process concludes with the official closing of the estate. The estate representative submits a final report to the court, documenting all transactions made on behalf of the estate. After the court approves this report, the estate representative is relieved of their duties, and the estate is formally closed.

Challenges in Probate Without a Will

Probate in Florida without a will can create certain challenges, especially if there are multiple heirs or complex assets to manage. Disagreements among family members are common in intestate cases, as individuals may have differing opinions on how the estate should be distributed. Furthermore, identifying all potential heirs can be a time-consuming process, especially if distant relatives need to be located.

Another challenge involves cases where the deceased had complicated or unusual assets, like businesses, rental properties, or joint accounts. In these situations, the estate representative may need legal assistance to ensure proper compliance and fair handling of the estate.

Probate Process FAQs

Q: How Long Does Probate Take Without a Will in Florida?

A: There isn’t a set timeline for probate without a will in Florida. It generally varies widely depending on the complexity of the estate. In some cases, probate can be completed in a few months, but more complex estates may take a year or longer, especially if disputes or legal complications arise.

Q: What Is the Order of Inheritance Without a Will in Florida?

A: In Florida, the order of inheritance without a will follows a very specific hierarchy, and it begins with the surviving spouse and children. If the deceased had no spouse or children, an inheritance may be passed on to surviving parents, then siblings. If there are neither parents nor siblings, the inheritance may pass to distant relatives according to the intestacy laws.

Q: How Do You Transfer Property After Death Without a Will in Florida?

A: To transfer property after death without a will, the estate representative must first identify and evaluate the property. They then handle the probate process and follow Florida’s intestate succession laws to allocate said property to heirs. For real estate, the court may authorize its sale or direct ownership transfer to rightful heirs.

Q: Who Becomes Executor if There Is No Will in Florida?

A: If there is no will, the court appoints a personal representative based on Florida’s priority system, typically beginning with the spouse. If the spouse does not wish to take on the burden, then adult children are prioritized, and then other family members. The selected representative is responsible for managing and distributing the estate according to Florida law.

To avoid probate without a will in Florida, creating a legally binding document while still living can circumvent stress and heartache for your loved ones. By working with the Law Office of Douglas A. Oberdorfer, P.A., clients can ensure compliance with Florida law, reduce the risk of complications, and allow for efficient estate administration tailored to each client’s needs. Contact us today to set up a consultation.