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Naples Estate Planning Lawyer > Blog > Estate Planning > What Is Intestate Succession?

What Is Intestate Succession?

attorney shaking hands with elder couple discussing about intestate succession

When an individual dies without any form of estate planning, their assets and debts must still be distributed to their heirs, if any exist. In the absence of a will or trust, the state of Florida uses what is known as intestate succession to decide who gets which assets from the decedent’s personal estate. This may sound acceptable to some, but it is always better to plan your estate, because if you leave things up to the courts, it is almost certain that your intended beneficiaries will not receive the assets you might wish them to have.

Specific Order Of Precedence For Beneficiaries

Someone who dies intestate effectively places their estate in the hands of Florida’s probate court. While the court has limited discretion, it must generally follow the regulations set out in the relevant statute, which establish an order in which a decedent’s surviving family is entitled to their estate, though the ultimate distribution does depend on how many surviving family members there are. For example, if there are no other descendants, a surviving spouse will inherit the entire estate, but if the decedent’s brother also survives him, the spouse only gets half.

A spouse occupies an unusual place in terms of Florida estate planning. If their spouse dies with a will or trust in place, they are entitled to what is known as the elective share (unless they waive the right) – generally 30 percent of the estate, regardless of the terms of the will. However, the elective share is not a factor in intestate succession, primarily because a surviving spouse’s portion is generally greater in an intestate succession than the elective share would be.

Probate Causes Delays

One thing to keep in mind is that regardless of whether one dies with an estate plan in place or intestate, there are some assets that do not have to go through probate. Probate is designed to ensure that a deceased person’s debts are managed and their assets are distributed – but any asset with a designated beneficiary or disposition plan, such as a 401(k) or a payable-on-death (POD) account, does not have to go through probate because the deceased person has already communicated their intentions clearly as to that asset’s disposition, so there is no need for the probate court to do so.

Making probate unnecessary (or as unnecessary as possible) is one of the major reasons why people choose to plan their estate in the first place. A valid will is designed to distribute all of a person’s assets to the beneficiaries they choose, which effectively leaves a probate court with nothing to do in the realm of disposition. It can also save the estate money in the long run, by cutting down on taxes owed and time spent in probate.

Call An Estate Planning Attorney

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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