What Happens to my Property if I Die without a Will?

A common misconception is that if a person dies without a will, that the state of Florida will take his or her property. Generally speaking, when a Florida resident dies, property passes in accordance with the following:
If a person owns property jointly with another person, that property passes at death to the survivor. In the case of real property, this is true if the property is held as joint tenants with rights of survivorship or joint tenants by the entirety. On the other hand, if real property is titled as tenants in common, the interest held by the decedent passes to that person’s beneficiaries. If a person owns an asset that lists another person(s) or entity as the beneficiary, payable-on-death, or transfer-on-death, this property passes to the person(s) or entities listed. If a person has created a revocable trust instrument and has properly funded the trust, those assets titled in the name of the trust pass pursuant to the terms of the trust at death. If a person dies with assets in his or her name alone, and has a valid last will and testament, the property will pass pursuant to the terms of the will, as overseen by the probate court. If a person has property in his or her individual name, with no beneficiaries listed, and has no will, trust or other testamentary instrument devising the property, then the property passes per the laws of intestacy. The laws of intestacy are located in Chapter 732 of the Florida Statutes and specify to whom a person’s individually titled property passes when a person has no testamentary documents in place (like a will or trust). These laws specify in detail the order, and in some cases the share, that the categories of beneficiaries (spouse, lineal descendant, parents, siblings, grandparents, aunts and uncles, and so on) may inherit property. This is one great danger of not having any testamentary instrument in place; a person’s wishes may not be carried out if the intestacy statutes must be applied. Additionally, creating your own “plan” by titling assets jointly with family members or relying on assets falling outside of probate by listing beneficiary designations can result in unintended consequences. Accordingly, it is recommended that a person consult with a knowledgeable estate planning attorney to prepare the most effective plan to protect the person and make certain that his or her wishes are carried out.

By:  Denyse D. Kruse, Esq.