Moving to Florida? Why Updating Your Estate Plan Is Essential for New Residents
November 13, 2025
Grounds for Contesting a Florida Last Will and Testament
November 22, 2025When a Florida resident dies without a valid will, the law calls this dying “intestate.” The person’s probate estate does not simply pass to family members informally. Under Fla. Stat. § 732.101, any part of an estate not disposed of by will passes to the decedent’s heirs according to Florida’s intestate succession statutes. Probate is still required. The court process is the same whether or not a will exists.
This page covers who inherits under Florida’s intestate succession law, how the distribution rules work for blended families, what happens to homestead property, how a personal representative (the Florida term for what is commonly called an “executor”) is appointed when there is no will, and what steps are required to open the estate. It also explains what you can do now to make sure your own family never faces these rules.
If you are dealing with a Florida probate estate right now and need guidance, a Florida probate attorney at Bucelo Diaz Law can walk you through the process for your specific situation. We offer a free 30-minute initial consultation.
What It Means to Die Without a Will in Florida
Dying intestate means leaving behind no valid will, or leaving a will that a court later rules invalid. A will may be invalid for several reasons: it was signed without the required two witnesses, it was executed under undue influence, or the testator lacked testamentary capacity at the time of signing. In each of those situations, the same intestacy rules apply as if no will ever existed.
Under Fla. Stat. § 732.101, the intestate estate consists of any part of the decedent’s property “not effectively disposed of by will.” That definition is narrower than most people expect. Certain assets pass entirely outside of probate regardless of whether there is a will:
- Accounts with named beneficiaries, such as life insurance policies, IRAs, and 401(k)s
- Bank and investment accounts with payable-on-death (POD) or transfer-on-death (TOD) designations
- Property held in joint tenancy with right of survivorship
- Assets held in a revocable living trust in Florida
What remains after those assets are carved out is the probate estate. That estate goes through the court process, and the intestate succession statutes determine who receives it.
Why Probate Is Still Required Even Without a Will
A common misconception is that the absence of a will means the court steps back and lets the family divide things among themselves. That is not how Florida law works. No will does not mean no probate.
Florida probate administration is governed by Fla. Stat. Ch. 733. The Petition for Administration, the appointment of a personal representative, the creditor notice period, and the formal distribution order are all required steps under Chapter 733 regardless of whether the decedent had a will. The court must formally authorize the transfer of title to probate assets. No family member has the legal authority to transfer property, close estate accounts, or distribute assets on their own.
Florida probate matters are heard in the Circuit Court of the county where the decedent was domiciled at death. Under Fla. Stat. § 733.101, venue is established in the decedent’s county of domicile. If the decedent had no Florida domicile, venue lies in any county where the decedent owned property.
The personal representative (the person who manages and closes the estate) is appointed by order of the probate court. No one can self-appoint. Until the court issues Letters of Administration, the estate has no authorized agent. Attempting to transfer or liquidate probate assets without Letters of Administration can expose a family member to personal liability.
The Florida Bar’s Consumer Pamphlet: Probate in Florida provides a plain-English overview of the court process for families beginning this journey.
The Order of Inheritance Under Florida Law
Florida’s intestate succession statutes set a specific priority order for who inherits when there is no will. Where you fall in that order determines whether you receive anything at all.
Spouse and Descendants
The most important variable is whether the decedent’s descendants (children, grandchildren) are also the surviving spouse’s descendants. Under Fla. Stat. § 732.102, two scenarios produce very different results:
| Scenario | Who Inherits | Statutory Basis |
|---|---|---|
| All descendants are also the surviving spouse’s descendants (no children from a prior relationship) | Surviving spouse inherits the entire intestate estate | Fla. Stat. § 732.102(1) |
| One or more descendants are NOT the surviving spouse’s descendants (blended family: children from prior relationship) | Surviving spouse inherits one-half of the intestate estate; descendants share the other half equally | Fla. Stat. § 732.102(4) |
The blended-family result under § 732.102(4) surprises many surviving spouses. If your late spouse had children from a prior relationship, those children are entitled to half the probate estate under Florida law, regardless of how long they were estranged or what the surviving spouse expected. A will or revocable trust can specify a different outcome; the intestate statute cannot.
For a full visual breakdown of every heir scenario, see our Florida intestate succession chart.
When There Is No Surviving Spouse
When the decedent leaves no surviving spouse, Florida’s intestate hierarchy under Fla. Stat. § 732.103 proceeds as follows:
- Descendants of the decedent inherit in equal shares, distributed per stirpes. Per stirpes means that if a child predeceased the decedent, that child’s children step into the parent’s share. § 732.103(1).
- If no descendants survive: the decedent’s parents, equally, or the surviving parent. § 732.103(2).
- If no parents survive: the decedent’s siblings and the descendants of deceased siblings. § 732.103(3).
- If none of the above: more distant collateral relatives are determined under § 732.103(4), dividing between paternal and maternal kindred.
- If there are no qualifying heirs at all: the property escheats to the State of Florida under Fla. Stat. § 732.107, with proceeds deposited into the State School Fund.
Half-Blood, Adopted, Posthumous, and Non-Marital Heirs
Most competing explanations of Florida intestacy stop at the basic hierarchy. The statute goes further, and these categories matter in real estates.
Half-blood relatives. When a decedent’s collateral relatives include both whole-blood and half-blood heirs (for example, siblings who share only one parent), a half-blood sibling inherits half the share of a whole-blood sibling. If all surviving collateral heirs are half-blood, each receives an equal share. Fla. Stat. § 732.105.
Adopted children. An adopted child is treated the same as a biological child for Florida intestate succession purposes. Under Fla. Stat. § 732.108(1), the adopted person is a descendant of the adopting parent and inherits accordingly. In most cases, adoption also severs the child’s inheritance rights from the biological parent, with narrow exceptions where the adoption was by a step-parent or close relative.
Posthumous heirs. A child conceived before the decedent’s death but born after the death is treated as having been alive at the time of death for intestate succession purposes. Under Fla. Stat. § 732.106, that child inherits the same intestate share as any other descendant.
Non-marital children. A child born outside of marriage inherits from the mother automatically. The child inherits from the father only if one of the following conditions is met under Fla. Stat. § 732.108(2): the parents participated in a marriage ceremony (even if void); paternity was established by court adjudication; or the father acknowledged paternity in writing. Disputes over paternity are among the most common reasons intestate estates become contested.
Florida Homestead and Intestate Succession
Florida homestead property follows its own set of rules, separate from the general intestate chart described above. These rules come from two sources: the Florida Constitution, Article X, Section 4, and Fla. Stat. § 732.401. Understanding the homestead rules is critical for any Florida family dealing with a decedent’s primary residence.
When the decedent is survived by both a spouse and lineal descendants, the surviving spouse does not inherit the homestead outright. Under Fla. Stat. § 732.401(1), the spouse takes a life estate in the homestead, and the descendants take a vested remainder. The spouse can live in the home for the rest of their life. The descendants become co-owners of the remainder interest immediately.
The surviving spouse is not locked into the life estate. Under Fla. Stat. § 732.401(2), the spouse may elect within 6 months of the decedent’s death to take an undivided one-half interest in fee simple instead of the life estate. The other half goes to the descendants per stirpes. This election is irrevocable once made and must be filed as a recorded notice in the county where the property is located. The choice between a life estate and a one-half fee simple interest has long-term implications for selling the home, refinancing it, and estate planning for the next generation.
The practical problem in blended-family situations is this: when the decedent had children from a prior relationship, those children hold the remainder interest alongside the surviving spouse’s new family. The surviving spouse cannot sell or refinance the homestead without the consent of all remainder holders. This is the most common source of family conflict we see in intestate blended-family cases.
A Florida estate planning attorney can explain how a properly drafted revocable living trust eliminates this outcome entirely by removing the homestead from the intestate succession rules before death.
Who Can Be Appointed Personal Representative When There Is No Will
When a will names a personal representative (the Florida equivalent of what is informally called an “executor”), that person has priority for appointment. When there is no will, the court appoints a personal representative under the priority order established by Fla. Stat. § 733.301:
- The surviving spouse, if any.
- The person selected by a majority in interest of the heirs.
- The heir with the nearest degree of kinship (the court may select the most qualified when multiple heirs apply at the same priority level).
- Any other heir.
- A creditor of the estate, but only after 60 days have elapsed from the decedent’s death with no heir having petitioned.
The court will not appoint a person who is a convicted felon, who has been convicted of abusing or exploiting a vulnerable adult, who is under 18 years of age, or who is mentally or physically unable to perform the duties. Fla. Stat. § 733.303.
There is also a residency requirement. Under Fla. Stat. § 733.304, a non-Florida resident may serve as personal representative only if they are a close relative of the decedent: a spouse, sibling, parent, child, or other relation specified in the statute. An unrelated person who lives out of state cannot serve, regardless of how close they were to the decedent.
Even if you are the surviving spouse and clearly the priority appointee, you still need a court order. You cannot self-appoint. The petition must be filed with the Circuit Court, the filing fee must be paid, and Letters of Administration must be issued before you have any legal authority to act on behalf of the estate.
How to Open a Probate Case When There Is No Will
The procedure for opening an intestate probate case in Florida follows the same steps as an estate with a will. The difference is that the court, rather than the decedent, determines who inherits and who manages the estate.
Step 1: File a Petition for Administration. The petition is filed with the probate division of the Circuit Court in the county where the decedent was domiciled at death, per Fla. Stat. § 733.101 and Fla. Prob. R. 5.200. The petition identifies the decedent, lists the heirs, describes the estate assets, and requests appointment of a personal representative.
Step 2: Pay the filing fee. Court filing fees vary by county. See our guide to Florida probate costs by county for county-level detail on filing fees across Florida.
Step 3: Attend the hearing (if required). For uncontested intestate estates, many judges sign the Order Appointing Personal Representative without requiring a hearing. Contested or complex estates require one.
Step 4: Receive Letters of Administration. Once appointed, the personal representative receives Letters of Administration. This is the legal document that gives the personal representative authority to access accounts, transfer property, and act on behalf of the estate.
Step 5: Administer the estate. The personal representative must file a Notice to Creditors, wait for the creditor claim period to expire (3 months from publication, or 30 days from notice to known creditors, whichever is later), pay valid claims, and then distribute remaining assets to the intestate heirs according to the court’s determination.
If the decedent owned real property in another state, Florida’s probate court has no jurisdiction over that property. A separate ancillary probate proceeding must be opened in that state. For a full county-by-county guide to Florida probate procedures, see our probate by county in Florida resource, including specific pages for Miami-Dade probate and Broward County probate.
Summary Administration vs. Formal Administration When There Is No Will
Whether a decedent had a will has no bearing on which type of probate administration is available. The determining factors are the size of the estate and how long the decedent has been dead.
Formal administration is required when the estate’s gross value exceeds $75,000 (exclusive of exempt property) or when the decedent died within the past 2 years. Formal administration is governed by Chapter 733 and involves the full court process: appointment of a personal representative, creditor notice period, inventory, and final accounting. For a detailed explanation, see our page on formal administration in Florida.
Summary administration is available when the estate does not exceed $75,000 in net value (exclusive of exempt property), or when the decedent has been dead for more than 2 years. Under Fla. Stat. § 735.201, summary administration does not involve the appointment of a personal representative. The court distributes assets directly to heirs after finding that all debts are paid or that the applicable period has elapsed. This makes it faster and less expensive than formal administration. For eligibility details, see our page on summary administration in Florida.
If the decedent owned real property in another state, a parallel ancillary probate is required in that jurisdiction, regardless of whether the Florida proceeding is formal or summary.
Timeline and Costs Without a Will
Dying without a will does not reduce the cost or time required to complete probate. In many cases, it increases both.
Formal administration timeline: Typically 9 to 18 months for an uncontested intestate estate. The mandatory creditor claim period alone adds a minimum of 3 months. Missing heirs, blended-family disputes over the distribution, or out-of-state property can extend this significantly.
Summary administration timeline: Typically 4 to 8 weeks for an uncontested, eligible estate.
Cost variables: Court filing fees vary by county. Personal representative compensation is based on the estate’s compensable value under Fla. Stat. § 733.617 (3% of the first $1 million, with declining rates above that). Attorney fees follow the same reasonable compensation framework. Publication costs for the mandatory creditor notice in a qualified local newspaper are an additional expense in every formal administration.
For a county-by-county breakdown of filing fees, publication costs, and other probate expenses, see our complete guide to Florida probate costs by county.
Common Complications in Florida Intestate Probate
The following complications arise regularly in intestate estates. Each one increases time, cost, and emotional burden on the family. Each one is also largely avoidable with an estate plan in place before death.
Missing or unlocatable heirs. Before distributing the estate, the personal representative must make a diligent search for all potential heirs. If heirs cannot be found, the court may require publication notice and a waiting period before distribution can proceed. The cost of that heir search falls on the estate, not on the court.
Family disputes over heir status. When there is no will, disputes arise over who qualifies as an heir. Non-marital children with disputed paternity, half-siblings whose relationship to the decedent is contested, and estranged relatives who have reappeared all create litigation in probate court. These disputes can delay distribution by months or years and substantially increase legal fees.
Out-of-state real property. If the decedent owned real estate in another state, a separate ancillary probate must be opened in that jurisdiction. Florida probate courts cannot transfer title to property located outside Florida. This is a parallel cost and time obligation that families often do not anticipate.
Creditor claims. Without a will and a named personal representative who can proactively manage creditor relationships, unknown creditors have the full statutory notice period to file claims. This can delay distribution even after all heirs are identified and agreed upon.
Each of these complications is avoidable. A basic estate plan, including a will or revocable trust, removes the uncertainty about distribution and reduces the time the estate spends in court.
You do not have to navigate this alone.
Talk to a Florida probate attorney. Schedule a free 30-minute initial consultation with our team and get a clear picture of the process for your specific estate.
Schedule Your Free ConsultationHow to Avoid Intestate Probate Going Forward
If reading about Florida’s intestate succession rules has prompted the question “how do I make sure my family never goes through this?”, three tools are available to you.
1. A valid Florida will. A will directs exactly who inherits your probate estate and names the personal representative you want to manage it. Under Fla. Stat. § 732.502, a Florida will must be signed at the end by the testator in the presence of at least two attesting witnesses, who must also sign in the testator’s presence and in each other’s presence. Notarization is not required but is strongly recommended to create a self-proving will. Working with a Florida will attorney ensures the execution formalities are met and the document reflects your actual wishes.
2. A revocable living trust. Assets held in a trust do not go through probate at all. When you fund a revocable living trust in Florida, those assets pass to your named beneficiaries according to the trust terms without court involvement, without a creditor notice period, and without the delays and costs of probate administration. A trust also solves the homestead life estate problem described above.
3. Beneficiary designations, TOD, and POD accounts. Life insurance policies, retirement accounts (IRAs, 401(k)s), and bank or investment accounts with payable-on-death or transfer-on-death designations pass directly to the named beneficiary regardless of whether there is a will or what the intestate statute says. These designations should be reviewed and updated after every major life event: marriage, divorce, birth of a child, or the death of a named beneficiary.
4. Durable Power of Attorney. A durable power of attorney in Florida does not itself avoid probate, but it authorizes a trusted person to manage your financial affairs during your lifetime if you become incapacitated. It is a core component of a complete estate plan, ensuring your affairs do not fall into court-supervised guardianship before your death.
Combining these tools under the guidance of a Florida estate planning attorney ensures that Florida’s intestate succession chart never applies to your estate.
When to Hire a Florida Probate Attorney
Florida law does not require an attorney for every probate case. For a straightforward summary administration of a small estate with no creditor issues and no family disputes, a family member who is willing to learn the procedure might manage without counsel. That is the exception, not the rule.
Intestate estates almost always benefit from legal representation. The absence of a will means there is no document that identifies the decedent’s intent, names a personal representative, or organizes the estate’s assets. Every determination must be made from scratch by the court, and a single error in the petition or in heir identification can delay the proceeding by months. Complex intestate situations, including blended families, out-of-state property, non-marital children, contested paternity, missing heirs, or estates with significant creditor claims, require a Florida probate attorney.
Even for smaller, simpler estates, an attorney can identify issues early, prepare the petition correctly on the first filing, and reduce the risk of a rejected or returned pleading. If you are unsure whether you need representation, a free 30-minute initial consultation will give you a clear picture of the process for your specific estate.
Frequently Asked Questions: Probate Without a Will in Florida
What happens if you die without a will in Florida?
When a Florida resident dies without a valid will, they are said to have died intestate. Their probate estate, meaning the assets that do not pass by beneficiary designation or joint ownership, is distributed by the court according to Florida’s intestate succession statutes (Fla. Stat. § 732.101 through § 732.111). Probate is still required. The court appoints a personal representative and oversees distribution to the heirs identified by statute.
Does a surviving spouse automatically inherit everything if there is no will in Florida?
Not always. If all of the decedent’s children are also the surviving spouse’s children, the spouse inherits the entire estate. But if the decedent had children from a prior relationship, the surviving spouse receives only half the estate, and those children share the other half. (Fla. Stat. § 732.102.) This result often surprises blended families. A will or revocable trust can specify a different outcome.
Can a family avoid probate if there is no will?
No. Without a will and without pre-death planning tools such as a revocable trust, joint ownership, or beneficiary designations, probate is required to legally transfer the decedent’s property. Family members cannot divide assets informally without a court order. Attempting to do so can result in personal liability for the person who distributed assets.
Who can open a probate case in Florida when there is no will?
Florida law (Fla. Stat. § 733.301) sets a priority order for who may petition to be appointed personal representative. The surviving spouse has first priority. If there is no spouse, the majority of heirs may select a representative. The court will not appoint a person who is a convicted felon, under 18, or incapacitated. Unrelated non-residents of Florida generally cannot serve.
What happens to a Florida home when the owner dies without a will?
Florida homestead property follows its own rules under Fla. Stat. § 732.401 and the Florida Constitution, Article X, Section 4. If the decedent is survived by a spouse and lineal descendants, the spouse generally takes a life estate and the descendants take a vested remainder. The spouse may elect within 6 months to take a one-half fee simple interest instead. This result is different from what most surviving spouses expect, particularly in blended-family situations.
How long does probate take in Florida without a will?
Formal administration typically takes 9 to 18 months for an uncontested intestate estate. The mandatory creditor claim period is a minimum of 3 months. Summary administration, available when the estate is under $75,000 or the decedent has been dead for more than 2 years, can close in 4 to 8 weeks. Missing heirs, blended-family disputes, or out-of-state property extend the timeline significantly.
Do stepchildren inherit in Florida if there is no will?
Generally no. Stepchildren are not considered descendants of the stepparent for intestate succession purposes unless they were legally adopted. A stepchild who was not adopted inherits nothing from the stepparent’s estate under Florida’s intestate statute. If the stepparent intended the stepchild to inherit, that intent must be expressed in a will or trust.
What is the difference between formal administration and summary administration when there is no will?
Both are available in intestate estates. Formal administration is required when the estate exceeds $75,000 (exclusive of exempt property) or the decedent died within the past 2 years. Summary administration is an abbreviated process for smaller or older estates (Fla. Stat. § 735.201). In summary administration, no personal representative is appointed; the court distributes directly to heirs. Summary administration is generally faster and less expensive, but it has strict eligibility requirements.
Here to help when you need it most.
If someone close to you has passed away without a will, our team is here to help you understand what comes next. Schedule a free 30-minute initial consultation, or call 954.399.1910. We serve Florida families in English and Spanish, with offices in Weston, Ocala, and Naples.
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About the Author
Alexis Bucelo Diaz, Esq., LL.M. is the founding attorney of Bucelo Diaz Law, PLLC. She holds a Master of Laws (LL.M.) in Estate Planning from the University of Miami School of Law and has more than 15 years of focused experience in Florida probate and estate planning. Alexis focuses her practice on estate planning and probate administration for Florida families. Florida Bar #86918. Selected to Super Lawyers Rising Stars in 2025.
In our probate practice, we frequently work with families who are surprised by Florida’s intestate distribution rules, particularly in blended-family situations. The homestead life estate provision, and its effect on a surviving spouse’s ability to sell the family home, is one of the most common issues we help families resolve.
