How Florida handles probate when there is no will

Starting probate in Florida if your loved one didn’t leave a will

• To get the process started, you will file a petition for probate with the clerk of the Circuit Court in the county where your loved one lived.

• A judge will issue letters of administration, which appoints a personal representative (usually a spouse or family member) and gives them legal and financial power to act on behalf of the estate.

• The personal representative will settle the estate’s affairs by paying debts and taxes owed, locating and appraising all assets, and meeting all court deadlines.

• At the end of probate, the judge will distribute the estate’s assets based on state law, since there is no will to provide instructions.

Although having a will is always a good idea, some people decide to put it off, thinking they’ll do it eventually, while others may not even see the necessity of having one. Whatever the case may be, when someone passes away without a will, probate is usually more complicated.

In Florida, one of the most important things to remember is that state laws dictate that you hire an attorney, in almost all cases.

Beyond that, the biggest difference between an estate with a valid will and one without is the way that inheritance is handled. Instead of carrying out instructions in the will, a judge will distribute the estate’s assets to heirs based on state law.

Initiating probate without a will in Florida

If your loved one had left a will, you would be required to file it in probate court within 10 days of their death.

Without a will, though, there is no deadline as to how soon you need to file for probate in Florida.

However, it’s always a good idea to do it as soon as possible, to settle their affairs and transfer ownership of assets to the people who will inherit them.

First you’ll need to choose a personal representative for the estate and file a petition with the clerk of the Circuit Court in the county where your loved one lived.

To serve as the personal representative, you must also file an Application for Administration for an intestate estate. (“Intestate” is the legal term for an estate without a valid will.) You must be 18 years or older, physically and mentally able to manage the handling of the estate, and must not have been convicted of any felonies in the past. Out-of-state personal administrators are allowed, as long as they are a blood relative.

The court will issue letters of administration, which is the document that gives the personal representative legal and financial authority to take care of everything that comes with handling and closing out your loved one’s estate.

From there, the personal representative will settle the estate’s financial and legal affairs: appraising assets, locating and paying all debts and taxes, and filing all required paperwork with probate court.

Hiring a lawyer for probate in Florida

Florida law requires that you hire a lawyer for probate, in almost all cases.

To begin with, the person seeking to become the estate administrator must be represented by an attorney who will file the application with the Probate Division for the Circuit Court in the county in which your loved one passed away.

Keep in mind that Florida law sets a “reasonable fee” that probate lawyers can charge.

For estates worth up to $40,000, the fee would be $1,500. For estates between $40,000 and $70,000, the fee is $2,250. And between $70,000 and $100,00, it’s $3,000. For estates larger than $100,000 the fee is $3,000 plus a percentage of the value over $100,000.

The rules of intestate succession

Like many states, when someone passes away without a will in Florida, whatever assets remain are distributed via the intestate succession law.

The priority order is as follows: spouse (if there is a surviving one), descendants (children and grandchildren), parents, siblings, and should any of the siblings no longer be living, their children would be next in line.

If there is a surviving spouse, they will inherit everything, even if the marriage resulted in children. But if the person who passed away had children from either a previous marriage or relationship, then the estate will be split 50/50: half to the spouse and half to the children who will have to share their 50% of the estate.

If the person who passed away had a child who passed away before them, then any children who were born to that child will inherit part of the estate.

Ex-spouses cannot inherit anything, no matter how hard they might try to contest intestate succession. 

If there is no surviving spouse or children, then the court will step in distribute the estate to the parents who will get everything. If no parents are no longer alive, then the siblings will split the estate.

If there are no living relatives, no matter how far down the intestate succession list the court goes, then the estate will escheat, meaning the government will take the estate. This scenario is fairly unlikely. 

Ultimately, because we never really know what’s going to happen in life, having a will is something to seriously consider. Even if you don’t have many assets or property you’ll be leaving behind when you do pass away, a will can still make things clear for your heirs and how you would like what you do have distributed.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.