Dying Without a Will in Florida

What Happens When Someone Dies Without a Will in Florida

If you die without a will in Florida, you don't get a say in what happens to your assets. The state does. Florida's intestacy laws kick in automatically, and they follow a rigid formula that has nothing to do with your actual wishes, your family dynamics, or what would actually make sense for your situation.

This isn't a scare tactic. It's just how the law works. And for a lot of South Florida families, the result is messy, expensive, and sometimes devastating.

Let's break down exactly what happens.

Florida's Intestacy Laws: Who Gets What

When someone dies without a will, they're said to have died "intestate." Florida Statute 732.101 through 732.111 governs who inherits property in that situation. The law creates a priority list, and it goes in this order:

If you're married with no children: Your spouse gets everything.

If you have children and they're all also your spouse's children: Your spouse still gets everything.

If you have children from a prior relationship: Here's where it gets complicated. Your spouse gets half of your estate, and your children from outside that marriage split the other half. That's not what most people expect, and it creates real tension between surviving spouses and stepchildren.

If you have no spouse: Your children inherit everything in equal shares.

If you have no spouse and no children: The estate goes up the family tree. Parents first, then siblings, then nieces and nephews, and so on.

What the law doesn't do is account for your unmarried partner, your closest friend, your favorite niece, or the charity you cared about. If they're not in the bloodline and you're not married to them, they get nothing.

Your Estate Still Goes Through Probate

Dying without a will doesn't let your family skip probate. In Florida, most estates still have to go through the probate process regardless of whether a will exists. The difference is that without a will, there's no executor you've appointed. Instead, the court appoints an administrator, usually a family member who petitions for the role.

That process takes time and costs money. In Florida, probate can take anywhere from several months to well over a year, depending on the complexity of the estate and whether any disputes arise. You can get a sense of typical timelines using our probate timeline guide, or estimate costs with the probate calculator.

Attorney fees in Florida probate are also set by statute. Under Florida Statute 733.6171, fees are based on the value of the estate, starting at 3% for the first $1 million in assets. On a $500,000 estate, that's $15,000 in attorney fees alone, not counting court costs, appraisals, and other expenses.

What About the Family Home?

This is where intestacy really causes problems in Florida. Real estate doesn't just transfer automatically. If the deceased owned a home, that property has to go through probate before title can be transferred to heirs. Until that happens, nobody can sell it, refinance it, or cleanly transfer it.

If there's a dispute between heirs about what to do with the property, it can end up in real estate litigation, which adds cost and conflict on top of an already difficult situation.

Florida's homestead laws also add another layer of complexity. Under Article X, Section 4 of the Florida Constitution, homestead property has special protections and transfer restrictions. If the deceased had a spouse or minor children, those protections can limit what other heirs can do with the property, even if they technically inherit a share.

Minor Children and Guardianship

If you have minor children and die without a will, a judge decides who raises them. You don't get to name a guardian. The court will generally look for a suitable family member, but if relatives disagree or no one steps up, the outcome is uncertain.

A will lets you name a guardian for your children. Without one, that decision is entirely out of your hands.

What a Will (or Trust) Would Have Done Instead

A properly drafted will lets you name your beneficiaries, appoint an executor you trust, name a guardian for your kids, and leave specific assets to specific people. A revocable living trust can go even further, letting your estate pass to heirs without going through probate at all.

If you're not sure which approach makes more sense for your situation, our trust vs will guide walks through the key differences in plain terms. And if you're not sure where to start with estate planning generally, we have a checklist that can help you think it through: estate planning checklist.

The Bottom Line

Dying without a will in Florida doesn't protect your family. It creates confusion, delays, and sometimes real conflict between the people you love. The state's formula is designed to be fair in a generic sense, but it rarely lines up with what any individual person would actually want.

A basic estate plan doesn't have to be complicated or expensive. For most people, it's one of the smartest investments they'll ever make.

Talk to The Kogan Firm

At The Kogan Firm, P.A., we help South Florida families navigate probate and put estate plans in place that actually reflect their wishes. Whether you're dealing with a loved one's estate right now or want to make sure your own family is protected, we're here to help.

Call us or contact us to schedule a free consultation. We'll give you a straight answer about where you stand and what your options are.