What Happens If Someone Dies Without a Will?

Prepare and protect
your legacy.

The future of your legacy starts here:

    What Happens If Someone Dies Without a Will?

    What Happens If Someone Dies Without a Will?

    If someone dies without a will in Florida, then Florida Intestacy Statutes will determine the distribution of their assets. Naturally, you might be confused about what exactly that means for you and your family.

    Here, we’re going to try and settle their confusion by answering, in detail, what happens if someone dies without a will:

    What Is a Will?

    A will is a legally binding document created by an individual (testator). It is proof of their wishes and plans for the distribution of their estate after their death.

    In a will, the testator lists beneficiaries. These are people who will receive a share of the estate; and an executor who administers the will and estate in accordance with your wishes after your death.

    This is your final document. It allows you to make plans to protect your family and your wealth – you decide who gets what.

    So, what happens if someone dies without a will in Florida?

    What Happens if There is No Will in Florida?

    A person who dies without a valid Will in Florida dies ‘intestate.’ Florida Intestacy Statutes then dictate the distribution of assets at death.

    This allows there to be a ‘standard’ estate plan to settle situations with no will.

    If there are no heirs to the decedent then the state may take the assets. However, that is extremely rare.

    It is advised that you create a will to protect your children and your wealth. A Florida will attorney can help you through this process. You should always receive legal expert consultation before making important estate planning decisions.

    Which Assets Avoid Intestate Succession?

    Any assets that wouldn’t pass through a will normally may avoid intestate succession.

    However, assets that would have required a will shall be affected by intestate laws – that’s usually assets that you solely own to your name, such as real estate and cars.

    Various assets that don’t usually require a will may be unaffected by intestate laws. These may include:

    • Property transferred to a living trust.
    • Life insurance proceeds.
    • Funds in retirement accounts
    • Securities in transfer-on-death accounts
    • Payable-on-death accounts
    • Property that is jointly owned

    Assets such as these will pass to surviving owners or to the named beneficiaries.

    Who Gets What When There Is No Will?

    Who gets what when someone dies without a will depends on the surviving heirs and relatives.

    Note that a “descendant” is a person in any generational level down the descending line of the person who has died; including, children, grandchildren, parents and remote descendants.

    Here’s a quick overview:

    Children But No Spouse

    • Children inherit everything.

    Spouse But No Descendants

    • The spouse inherits everything.

    Spouse With Descendants From You and That Spouse, With No Other Descendants

    • The spouse inherits everything.

    Spouse With Descendants From You and That Spouse, Plus Descendants the Spouse Has From Another Relationship

    • The spouse inherits half of your intestate property
    • Your descendants inherit the other half of your intestate property

    Spouse and Descendants From You and Someone Other Than That Spouse

    • The spouse inherits half of your intestate property
    • Your descendants inherit the other half of your intestate property

    Parents but No Spouse or Descendants

    • Parents will inherit everything

    Siblings but No Spouse, Descendants, or Parents

    • Siblings will inherit everything


    Half-relatives inherit as if they were ‘full’ relatives. These individuals have the same right to property as they would if they had both parents in blood.

    Posthumous Relatives

    Relatives conceived before and born after your death will have the right to inherit your estate.

    Immigration Status

    Any relative entitled to an intestate share of the property will inherit the estate regardless of whether they are U.S. citizens or not.

    If you have any questions about your family’s circumstances, contact a Florida will attorney.

    What If There Is No Family?

    If you die without a will and don’t have any family, your property may be taken by the state.

    However, this is rare because laws are designed to allow anyone remotely related to you to receive your property. For example, for the state to take your property you would likely need to have no children, siblings, parents, grandparents, aunts, uncles, nephews, nieces or cousins of any degree.

    Who Takes Care of Your Children If You Die Without a Will in Florida?

    If someone dies without a will in Florida but had minor children then the surviving biological parent will become sole guardian and have custody of the child.

    However, if there are no surviving biological parents then a guardian will be required. Which in most cases is a member of the family who will petition the court.

    As you can see, this would present a very uncertain situation for your children and is one of the most common reasons why you should create a will.

    By having a valid will, you can assure that your children are cared for by people you trust if you pass away.

    This is an extremely important decision that should be made by you and not a court that will not have the same understanding of family dynamics and trust as you.

    If you have any questions, contact a Florida will attorney.

    Who’s in Charge?

    If there is no will, then there is no named executor to administer the estate.

    State law will therefore provide a list of eligible people. If probate is necessary the court will appoint someone from that list. In most cases, this will be the surviving spouse. Adult children are often next in priority, followed by other close and trusted family members.

    The executor must follow state rules to ensure all assets are distributed fairly through the probate process.

    A circuit court judge will preside over all probate proceedings.

    What if a Property Owner Lived outside Florida?

    If someone owned property in Florida but never lived or even visited the state, then Florida law will determine who inherits the property if the person dies without a will.

    Why You Should Make a Will in Florida

    Because of intestate laws, many people think that gives them a reason to avoid making a will.

    However, as you can see, this removes all freedom to decide who gets what. It also removes the protection of choosing a guardian for your children, in the nightmare scenario where you die early.

    Naturally, the legal jargon and general paperwork may be off-putting.

    That’s where an estate planning attorney can help. Every day we help regular Florida residents to create and validate wills that protect their children and their wealth.

    From drafting the document to helping you understand how it impacts your family, we can help.

    By making a will, you can gain full control. If you wish to create a will or have any questions, contact a Florida will attorney for their legal expertise.

    Contact a Florida Will Attorney Today

    Free Consultations

    Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced estate planning attorneys, they can help you create a will to avoid complications for your family after your death.

    Schedule a free consultation today to get started or to get any questions answered.

    How Can We Help?

    Our experienced Estate Planning & Probate Attorneys are available to answer any questions you might have. 

    Tampa Bay Times

    Best of the Best
    People's Choice
    2019, 2020 & 2021

    Our Dedicated Team of

    A Divison of Battaglia, Ross, Dicus & McQuaid, P.A.

    We handle all types of
    Estate Planning & Probate Attorney