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Home > Blog > Probate > Passing Without A Will Can Lead To Probate Problems

Passing Without A Will Can Lead To Probate Problems


You may know that avoiding probate is often a good idea and that there are many ways to do it through estate planning. But what happens if you have no estate plan—that is, no will, no trusts or other documents that say who gets your things and assets?

Florida’s Intestate Laws

This is known as dying intestate. When you die intestate, Florida law will dictate who gets your things. Florida’s default inheritance laws may suit you just fine. But if they do not, and they aren’t the way you want your property to pass, the only way to avoid them is through an estate plan.

Based on Florida’s intestate laws, a probate court will give your property to your spouse if you have no kids, or your children if you have no spouse. If you have children with your spouse (that is, biological or adopted kids with the spouse) your spouse will still inherit everything.

If you have neither a surviving spouse or surviving children, your parents will be next in line to inherit your property. After that, your siblings will inherit.

Kids From Another Spouse

Things get a little more complex when you have kids from another partner or a prior spouse.

In that case, your spouse and your kids (both the ones from your current marriage and the ones that aren’t from the marriage) will both inherit half of your estate (all your kids will share their respective portion of their half). If your spouse has kids from another relationship and with you, then your property will be divided between your spouse and your biological children with that spouse.

In other words, your biological kids with your spouse will only directly get anything if your spouse has kids from another marriage (or if you had no surviving spouse).

Child or Not?

Sometimes issues can arise as to who is considered a child.

Adopted kids are considered kids for inheritance purposes, as are kids born while you were married to the mother. If you put your kids up for adoption, they are not considered your kids for intestate purposes.

If you were not married to the mother when your kids were born you will have to have acknowledged paternity, or had a court determine your paternity. This often happens in paternity actions; if you are paying or receiving child support for a child you had with someone when you weren’t married to them, there’s a good chance that the court has previously determined paternity.

Avoiding Fighting

This is just a primer on intestate laws—intestate laws go all the way down the familial line, including nephews and cousins, depending on who has survived you. If you don’t have a lot of immediate family surviving you, you can expect distant relatives to come out of the woodwork to collect their intestate share.

This can cause problems in probate court, if others who you were close to, but were not legal family with, also want to be taken care of from the proceeds of your estate.

If you have a probate matter, contested or not, we can help. Contact the Tampa probate lawyers at Gilbert Garcia Group, P.A.




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