Intestate succession

Question 1

An intestate estate arises in three situations:

Answer 1

1. The decedent died without having executed a will
2. The decedent died having revoked a will
3. The decedent died having executed a will that was later held to be invalid

Question 2

How can a person die partially intestate?

Answer 2

If a will effectively disposes of some probate assets but not others, those other probate assets pass to the decedent’s heirs through intestacy

Question 3

Intestate (or Intestate Decedent)

Answer 3

the individual whose assets passed by intestacy

Question 4

Who is the first taker provided for by the statutory distribution pattern?

Answer 4

The surviving spouse is the first taker provided for by statute

Regardless, a spouse may be estopped from these rights if she has repudiated the marriage

Question 5

What is the share of the surviving spouse if no descendants?

Answer 5

the surviving spouse receives 100% of the probate estate

Question 6

What is the share of the surviving spouse if there are descendants?

Answer 6

If all of the decedent’s surviving descendants are descendants of the surviving spouse → the spouse gets 100% of the probate estate

If all of the decedent’s surviving descendants are descendants of the surviving spouse but the surviving spouse also has descendants who are not the decedent’s descendants → 50% probate estate

If at least one of the decedent’s surviving descendants is not the surviving spouse’s descendant → 50% probate estate

Question 7

Is a person’s status as spouse a legal question?

Answer 7

Status as spouse is a legal question that does not depend on the quality or length of a relationship

Florida does not recognize common law marriage

However, there is an exception to the requirement for valid legal marriage IF in good faith and substantial compliance to the marriage statute.

Question 8

Descendants

Answer 8

The person in any generational level down the descending line

They receive any left over from a surviving spouse, or the entire estate if no surviving spouse

Question 9

Statutory distribution pattern

Answer 9

1. Surviving spouse
2. Descendants
3. Parents take if no descendants or surviving spouse
4. Siblings of the deceased or heirs of siblings
5. Grandparents, or if none, descendants of decedent’s grandparents
6. If there is no one else, the estate can go to the kindred of a predeceased spouse. The spouse is then treated with the same line of succession
7. If there is no one else, the property escheats and is taken by default for the state of Florida

Question 10

Escheat

Answer 10

A qualified heir may challenge this within 10 years

Elements:

1. Proof of actual death (without an actual death certificate, this will require a 5 year diligent search)
2. Non-marriage
3. Intestacy of decedent
4. An inability to locate ascertainable heirs after a diligent search

Question 11

Per stirpes

Answer 11

An estate of a decedent is distributed per stirpes if each branch of the family is to receive an equal share of an estate