What Happens If I Pass Away Without a Written Will?

April 28, 2020

By:  Aaron Humphrey, Esq., Supervising Attorney of the Estate Probate Department at Glantzlaw

We are all living in unprecedented times due to the COVID-19 pandemic.  Many of us may be distressed, and rightfully so, about what is transpiring in the world around us, both afar and at home.  Perhaps now, more than ever before, we have a compelling reason to prepare for the uncertainty that lies ahead.  This is by no means to suggest that we should allow ourselves to be overwhelmed with fear, but merely to remind us of the significant importance of preparing now for our future: a future with a glimpse of hope on the horizon for a return to normalcy.

If you are a primary resident of Florida and do not have a proper, written Will in place, please be aware that Florida law dictates what will happen to your assets (referred to in the remainder of this article as your “estate”) after you pass away.  If you are lawfully married and your spouse survives you, your spouse will inherit your entire estate, even if you have biological or legally adopted children from your union with that spouse.  If, however, you have one or more children from a relationship other than your current spouse, your surviving spouse will only inherit half of your estate, and your children will inherit the other half of your estate.  In this particular instance, the applicable half share of your estate will be divided equally among the total number of your children.

If you have no surviving spouse but you have children, your estate will be divided equally among the total number of your children.  If you have no surviving spouse and no surviving children, but you have grandchildren, your estate will be divided equally among the total number of your grandchildren.  Alternatively, if you have no surviving spouse but some of your children are still living while some of your children have predeceased you, your estate will be divided equally according to the total number of all of your children, both living and deceased.  The portion of your estate that would pass to a deceased child will then be further divided equally among the total number of your grandchildren born of, or legally adopted by, that deceased child.  This same distribution scenario applies to great grandchildren, etc.  Ultimately, so long as you still have at least one living, lineal descendant (that is, a child, grandchild, great grandchild, great great-grandchild, etc.), that lineal descendant will inherit your estate.

If you have no surviving spouse and no surviving lineal descendant whatsoever, but your parents are still living, your estate will be divided equally between your parents.  In this particular instance, if only one of your parents is still living, your sole surviving parent will inherit your entire estate.

If absolutely none of the previously mentioned family members are living at the time that you pass away, your estate will be divided equally among the total number of your siblings.  If any of your siblings have predeceased you but have living children of his or her own, the portion of your estate that would pass to a deceased sibling will then be further divided equally among the total number of your nephews and/or nieces born of, or legally adopted by, that deceased sibling.  This same distribution scenario applies to grand nephews and grand nieces, etc.  Ultimately, so long as you still have at least one living, collateral heir (that is, a nephew or niece, grand nephew or grand niece, great grand-nephew or great grand-niece, etc.), that collateral heir will inherit your estate.

If absolutely none of the previously mentioned family members are living at the time that you pass away, your estate will be equally divided into two parts.  Presuming that your grandparents are still living, one part will pass to your father’s parents (that is, your paternal grandparents), and the other part will pass to your mother’s parents (that is, your maternal grandparents).  If your grandparents have predeceased you, whatever part of your estate they would have otherwise inherited will pass equally to the number of your uncles and aunts on the respective paternal or maternal side of your family.  If any of your uncles or aunts have predeceased you but have living children of his or her own, the portion of your estate that would pass to a deceased uncle or aunt will then be further divided equally among the total number of your cousins born of, or legally adopted by, that deceased uncle or aunt.  This same distribution scenario applies to second cousins, etc.  Ultimately, so long as you still have at least one living, collateral heir from this particular part of your extended family (that is, a cousin, second cousin, third cousin, etc.), that collateral heir will inherit your estate.

If absolutely none of the previously mentioned family members are living at the time that you pass away, but if you had a predeceased spouse who has living family members of his or her own, your estate will pass to the living family members of your predeceased spouse in the same order as described above.  If you were married more than once and outlived your spouse each time (that is, if your prior marriage was severed by death, not divorce), your estate will pass to the living family members of your most recently predeceased spouse.

Finally, if absolutely none of your predeceased spouse’s family members are living at the time that you pass away, the State of Florida will inherit your entire estate.  In this particular instance, the law requires that your estate be liquidated and the net cash proceeds be deposited specifically into the State School Fund.

Depending on your particular desires for the distribution of inheritance of your assets after you pass away, having a proper, written Will in place is absolutely necessary to ensure that only the persons and/or organizations of your specific choosing inherit from you and that they inherit only what you want them to inherit.  Without a Will, only your family members will inherit from you in the order and percentages described above.  If you have living, immediate family members but perhaps desire that certain extended family members or close friends or your favorite charitable organizations also inherit something from you, a Will is the only way to accomplish this.*  Likewise, if you desire that your assets be distributed in unequal percentages to various persons and/or organizations, or that only certain assets be distributed only to certain persons and/or organizations, a Will is the only way to accomplish this.*

We at Glantzlaw welcome the opportunity to speak with you about your estate planning goals and to formulate a satisfactory solution for your particular set of circumstances.  Please do not hesitate to contact us today to learn how we may be of service to you.  We look forward to hearing from you soon.

A Trust is another type of estate planning document that may take the place of, or be used in conjunction with, a Will.