Probate Without a Will in Florida: How Intestate Succession Decides Who Inherits

When a Florida resident dies without a valid will, the estate is distributed according to intestate succession, a fixed set of rules in Chapter 732 of the Florida Statutes that names the heirs and fixes each person’s share. In plain terms, the state already wrote a default will for everyone who never wrote their own, and it decides who inherits based on family relationship, not on what anyone wishes had happened. For beneficiaries waiting on a distribution, understanding those rules is the difference between guessing and knowing where you stand.

I have walked many Palm Beach families through exactly this situation. A parent or relative passes, there is no will to be found, and the people closest to the decedent are left wondering whether they inherit at all, how much, and how long it will take. This article explains how Florida’s intestacy statutes actually work, where the common surprises hide, and what you can do while you wait.

What “intestate” means in Florida probate

A person who dies without a valid will dies intestate. A person can also be partially intestate, for example when a will disposes of some assets but not others, or when a gift in the will fails. In either case, the property that is not controlled by a valid will passes through intestate succession under Florida Statutes Chapter 732, Part I (sections 732.101 through 732.111).

Two points trip people up immediately. First, intestacy only governs probate assets, the property titled in the decedent’s name alone with no beneficiary designation and no survivorship feature. Second, intestacy is not the same as “the government takes everything.” The estate going to the State of Florida (called escheat) is a true last resort that almost never happens, because the statute reaches out to a wide circle of relatives first.

Assets that skip intestate succession entirely

Before you map out who inherits, identify what is even in the probate estate. The following typically pass outside probate, regardless of whether there is a will:

• Life insurance and retirement accounts (IRA, 401(k)) with a named, living beneficiary
• Bank or brokerage accounts titled payable-on-death (POD) or transfer-on-death (TOD)
• Real estate and accounts held in joint tenancy with right of survivorship or as tenancy by the entireties between spouses
• Assets owned by a funded revocable living trust
• Florida homestead property, which descends under its own constitutional and statutory rules (Article X, Section 4 of the Florida Constitution and Fla. Stat. 732.401)

This is why two siblings can look at the same estate and reach opposite conclusions. One counts the house and the bank account; the other knows the house was jointly titled and the account was POD to a single child. Only the genuinely probate assets flow through the intestacy ladder below.

Who inherits under Florida intestate succession

Florida’s scheme starts with the surviving spouse, then moves down and out through the bloodline. The two anchor statutes are Fla. Stat. 732.102 (the spouse’s share) and Fla. Stat. 732.103 (the share of everyone else).

The surviving spouse’s share (Fla. Stat. 732.102)

The spouse’s portion depends entirely on whether there are surviving descendants and whose descendants they are:

• No surviving descendants. The surviving spouse takes the entire intestate estate.
• All surviving descendants are also the spouse’s descendants (a traditional blended-free family). The surviving spouse again takes the entire intestate estate.
• The decedent has descendants who are not the spouse’s descendants (children from a prior relationship). The surviving spouse takes one-half, and the descendants share the other half.
• The spouse has descendants who are not the decedent’s descendants, and the decedent has descendants. The surviving spouse takes one-half as well.

That second bullet is the part many people get wrong because they remember an old version of the law. Before a 2011 amendment, a spouse with shared children received only the first $60,000 plus half the balance. Under the current statute, a spouse whose marriage produced all of the decedent’s children inherits the full intestate estate. Blended families are where the spouse’s share drops to one-half, and that is precisely where disputes between a surviving spouse and stepchildren tend to erupt.

Descendants and the rest of the family (Fla. Stat. 732.103)

Whatever does not pass to a spouse, or the whole estate when there is no spouse, descends in this order:

1. To the decedent’s descendants (children, then grandchildren, and so on)
2. If none, to the decedent’s parents equally, or to the survivor of them
3. If none, to the decedent’s brothers and sisters and the descendants of any deceased sibling
4. If none, the estate splits into two halves, one to the paternal kindred (grandparents, then aunts/uncles and their descendants) and one to the maternal kindred
5. If there is kindred on only one side, that side takes the whole estate
6. As a final fallback, to the kindred of the decedent’s last deceased spouse, as if that spouse had survived and then died intestate

Only if every one of those categories comes up empty does the estate escheat to the state. In real life, the statute almost always lands on a living relative.

Per stirpes: how a generation divides a share

Florida distributes to descendants per stirpes (Fla. Stat. 732.104). Picture a decedent with three children, one of whom died earlier leaving two kids. The estate splits into three equal shares at the children’s level. The two living children take their shares outright; the deceased child’s one-third drops down and is split between that child’s two children, who take one-sixth each. Each branch of the family tree inherits the share its ancestor would have received, no more and no less.

Special rules that surprise beneficiaries

Florida homestead has its own playbook

The decedent’s primary residence is often the most valuable asset and the most misunderstood. Protected homestead does not pass under the ordinary intestacy shares. If the decedent is survived by a spouse and descendants, the surviving spouse takes a life estate in the homestead with a vested remainder to the descendants, unless the spouse timely elects a one-half tenancy-in-common interest instead under Fla. Stat. 732.401. Homestead also cannot be freely devised when a spouse or minor child survives. If your distribution involves a house, treat it as a separate analysis.

Half-blood, adopted, and afterborn heirs

• Adopted children inherit from their adoptive family as natural children and generally lose intestate rights in the biological family (Fla. Stat. 732.108).
• Half-siblings inherit only half as much as whole-blooded siblings when they inherit alongside them (Fla. Stat. 732.105).
• A child conceived before the decedent’s death but born after inherits as if born during the decedent’s life (Fla. Stat. 732.106).
• Children born outside of marriage can inherit from the father if paternity is established under Fla. Stat. 732.108.

The 120-hour survival rule

An heir must survive the decedent by at least 120 hours to inherit under intestacy (Fla. Stat. 732.601). When two relatives die close together, this rule prevents property from passing through an heir who barely outlived the decedent.

What the intestate process looks like for a beneficiary

Even without a will, an estate with probate assets still needs a court-supervised administration. Here is what waiting beneficiaries should expect.

A personal representative still gets appointed

Because there is no will naming an executor, the court appoints a personal representative under the priority list in Fla. Stat. 733.301: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree. That appointed person collects assets, pays valid debts and taxes, and ultimately distributes what remains under the intestacy shares.

Creditors are paid before you are

This is the single hardest thing for beneficiaries to accept. Florida law requires the personal representative to give notice to creditors, who then have a statutory window to file claims (generally three months from publication, with a backstop). Valid debts, administration costs, and taxes are paid before any distribution to heirs. Your share is what remains after the estate is settled, which is one of the and a frequent source of frustration when heirs expect a fast payout.

Formal versus summary administration

Smaller estates may qualify for summary administration when the probate estate is worth $75,000 or less, or when the decedent has been dead for more than two years. Larger estates proceed through formal administration, which involves a personal representative and a longer timeline. Either way, an heir cannot simply take property; the court process channels it. Working through the mechanics of a New York-style shows how similar the core sequence is across states, even though Florida’s statutes control here.

How to protect your interest while you wait

If you believe you are an intestate heir of someone who passed in Palm Beach County, a few practical steps protect your share:

• Confirm there really is no will. Search safe deposit boxes, the decedent’s attorney, and the clerk of court, where a will may have been deposited.
• Inventory which assets are actually probate assets. Beneficiary designations and joint titling often redirect the bulk of an estate away from intestacy.
• Identify the full circle of heirs. Half-siblings, a prior marriage’s children, and predeceased relatives with living descendants all change the math.
• Ask to be kept informed. Beneficiaries are entitled to notice and to an accounting of the administration.
• Get advice before you sign anything. Waivers, family settlement agreements, and quick “buyouts” of an inheritance interest are hard to undo.

Intestacy can feel like a maze because it touches family relationships, statutory shares, homestead protections, and creditor priorities all at once. A focused review of titling and family tree usually answers the two questions beneficiaries care about most: am I an heir, and what is my share? If your matter also involves Florida real property or a blended family, our can map the distribution before disputes harden. You can also learn how a valid will would have changed the outcome, or review the Florida probate process in more detail, and reach out when you are ready to talk specifics.

The bottom line

Dying without a will in Florida does not mean chaos; it means the legislature’s default plan takes over. The surviving spouse and descendants come first, the bloodline radiates outward from there, and homestead and creditor rules layer on top. For a beneficiary, the smartest move is to stop guessing, confirm what is in the probate estate, and pin down your statutory share so you know what you are actually waiting for.

Frequently Asked Questions

Who inherits if there is no will in Florida?

Florida’s intestate succession statutes (Chapter 732) control. The surviving spouse inherits first, taking the entire estate if there are no descendants or if all descendants are shared with the spouse, and one-half if the decedent had children from another relationship. Whatever does not pass to a spouse goes to descendants, then parents, then siblings, and outward through the bloodline. Escheat to the state is a rare last resort.

Does the surviving spouse get everything in Florida intestacy?

Not always. Under Fla. Stat. 732.102, the spouse takes the entire intestate estate only when there are no descendants, or when every surviving descendant is also a descendant of the spouse. If the decedent left children from a prior relationship, or the spouse has children who are not the decedent’s, the spouse takes one-half and the descendants share the rest. Homestead property follows separate rules.

How long does intestate probate take in Florida?

It depends on the estate. Summary administration, available for estates of $75,000 or less or when the decedent died more than two years ago, can resolve in a few months. Formal administration typically runs six months to over a year, because the personal representative must give creditors their claim period and settle debts and taxes before distributing shares to heirs.

What is per stirpes distribution in Florida?

Per stirpes means each branch of the family inherits the share its ancestor would have received. If a decedent’s child died first but left children, that deceased child’s share passes down and is split among their children. So three children with one predeceased leaving two grandchildren means each living child gets one-third and each grandchild gets one-sixth.

Can I be disinherited under Florida intestate succession?

Intestacy follows fixed statutory categories, so heirs cannot be cut out by personal wishes that were never put into a valid will. However, you only inherit if you fall within the statutory order and survive the decedent by at least 120 hours. Half-blood relatives inherit a reduced share alongside whole-blood relatives, and adopted children generally inherit from their adoptive, not biological, family.