Intestate Succession: How property passes without a will

In Florida, property that was owned solely by an individual who has died without a will passes to his or her heirs in accordance with Chapter 732, F.S. Homestead rights and interests of spouse and minor children are two common exceptions to the general passing rule. New legislation which slightly changes the statutes went into effect October 1, 2011. The below will generally focus on two main issues, homestead and surviving spouse interests in the property.

Homestead property will bypass the decedent’s estate for probate purposes (not for tax purposes). The probate documents of an Order Determining Homestead and and Order Determining the Heirs and Beneficiaries should be filed within the probate to confirm the property bypasses the estate and who it passes to. A surviving spouse will be entitled to a life estate in the property with the remainder interest first vesting in any minor children, if not minor children, then in the stated heirs and beneficiaries. When relying on the Order Determining Heirs and Beneficiaries as the title vesting instrument, it is best practice to obtain an affidavit from a party with actual knowledge stating that there is not a surviving spouse or minor children.

Even in the absence of homestead status, the surviving spouse will have rights in the property. Pursuant to the newly revised 732.102, if there is no surviving descendant of the decedent, the entire intestate estate vests in the spouse. If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate vests in the spouse. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate vests in the spouse. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate vests in the spouse.

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