Florida

Intestacy

General Definition

A decedent's intestate estate is defined as any part of a decedent's estate not effectively disposed of by a valid will. Sec. 732.101

Order of Distribution

The intestate share of the surviving spouse is as follows

1. If there is no surviving descendant of the decedent, the entire intestate estate.
2. 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.
3. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, 1/2 of the intestate estate.
4. 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, 1/2 of the intestate estate. Sec. 732.102.

The part of the intestate estate not passing to the surviving spouse under Sec.732.102 or the entire intestate estate, if there is no surviving spouse, will be distributed as follows:

1. To the descendants of the decedent.
2. If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.
3. If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
4. If there is none of the foregoing, the estate must be divided, 1/2 to the decedent's paternal, and the other 1/2 to the decedent's maternal, kindred in the following order: (a) To the grandfather and grandmother equally, or to the survivor of them. (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent. (c) If there is either no paternal kindred or no maternal kindred, the estate will go to the other kindred who survive, in the order stated above.
5. If there is no kindred of either part, the whole of the property will go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate. Sec. 732.103.

If here is no taker, the estate passes to the State of Florida. Property that escheats will be sold and the proceeds paid to the Chief Financial Officer of the state. At any time within ten years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds will become absolute. Sec. 732.107.

Will Qualifications

Common Law or Community Property

Florida is a common law, elective share state.

Capacity

An individual who is of sound mind who is either 18 or more years of age or an emancipated minor may make a will. Sec. 732.501.

Drafting

Every will must be in writing and the testator must sign the will at the end or the testator's name must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction. The testator must sign or acknowledge the will in the presence of at least two attesting witnesses. The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. Sec. 732.502

Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator's handwriting that has been executed in accordance with subsection (1) will not be considered a holographic will. Sec. 732.502 (2)

A will or codicil executed in conformity with Sec. 732.502 may be made self-proved at the time of its execution by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer's certificate attached to or following the will. Sec. 732.503.

Beneficiaries

A beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.

Modifications

A codicil must be executed with the same formalities as a will. Sec. 732.502.

A will or codicil, or any part of either, is revoked by a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils. Sec. 732.505. Further, a will or codicil is revoked by the testator, or some other person in the testator's presence and at the testator's direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation. Sec. 732.506.

Any provision of a will executed by a married person that affects the spouse of that person will become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will must be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise. Sec. 732.507.

Probate Process

Naming of Personal Representative

In granting letters of administration, the following order of preference must be observed:

1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified. Sec. 733.301(1)(a).

If no application is made by any of the persons described above, the court will appoint a capable person; but no person may be appointed who:

1. Works for, or holds public office under, the court.
2. Is employed by, or holds office under, any judge exercising probate jurisdiction. Sec. 733.301(3).

Submission of Will

Until admitted to probate in Florida or in the state where the decedent was domiciled, a decedent's will is ineffective to prove title to, or the right to possession of, property of the testator. Sec. 733.103.

The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within ten days after receiving information that the testator is dead. The custodian must supply the testator's date of death or social security number to the clerk upon deposit. Sec. 732.901(1).

Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. All costs, damages and a reasonable attorney's fee will be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will. Sec. 732.901(2).

Inventory

A personal representative must file a verified inventory of property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value at the date of the decedent's death. Sec. 733.604.

Homestead, Exempt Property, Family Allowance and the Elective Share

If the decedent is survived by a spouse and one or more descendants, the surviving spouse is entitled to a life estate in the homestead, with a vested remainder to the descendants living at the time of the decedent's death, per stirpes. Sec. 732.401(1). In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent's descendants in being at the time of the decedent's death, per stirpes. Sec. 732.401(2)

The surviving spouse, or, if there is no surviving spouse, the children of the decedent have the right to the "exempt property." Exempt property shall consist of:

1. Household furniture, furnishings, and appliances in the decedent's usual place of abode up to a net value of $20,000 as of the date of death.
2. Two motor vehicles used by the decedent or members of the decedent's immediate family as their personal motor vehicles.
3. All qualified 529 tuition programs.
4. All death benefits available to teachers and administrators under Sec. 112.1915. Sec. 732.402.

The surviving spouse and the decedent's lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. The court may order this allowance to be paid as a lump sum or in periodic installments. The allowance may not exceed a total of $18,000. Sec. 732.403.

The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent in an amount equal to 30%. Sec. 732.101 and Sec. 732.2065.

Debts and Distributions

The personal representative must pay all claims within one year from the date of first publication of notice to creditors, provided that the time may be extended with respect to claims in litigation, unmatured claims and contingent claims for the period necessary to dispose of those claims. The court may extend the time for payment of any claim upon a showing of good cause. Sec. 733.705.

The personal representative must pay the expenses of the administration and obligations of the decedent's estate in the following order:

1. Costs, expenses of administration and compensation of personal representatives and their attorneys fees.
2. Reasonable funeral, interment and grave marker expenses, whether paid by a guardian, the personal representative or any other person, not to exceed the aggregate of $6,000.
3. Debts and taxes with preference under federal law.
4. Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
5. Family allowance.
6. Arrearage from court-ordered child support.
7. Debts acquired after death by the continuation of the decedent's business but only to the extent of the assets of that business.
8. All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent's lifetime. Sec. 733-707.

Estate/Inheritance Tax

As of January 1, 2005, Florida no longer imposes a separate estate tax at the state level.

Income Tax Charitable Deductions and/or Credits

No personal income tax in Florida.