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What Happens to an Estate if There is no Will or Trust?

Close up of hand signing a Last Will and Testament document

When someone dies without having a will or trust in place, it can lead to confusion over what happens to the person’s estate. In Florida, situations where a will or trust have not been established, the estate is distributed by the terms set-forth in Florida’s law of intestate succession. Essentially, this means the law decides what is a fair distribution of the assets amongst heirs. As can sometimes be the case in these instances, not everyone will always agree to the fairness of the decisions made regarding an estate. 

What is passed under interstate succession?

Some things are passed under intestate succession, while others are not. For instance, assets like cash, stocks, and property are passed in succession to heirs. However, jointly owned property with a right of survivorship, financial accounts with transfer-on-death provisions and all pensions, annuities and insurance policies with properly designated beneficiaries are not governed by intestate succession laws because these assets are not part of a decedent’s probate estate. It is important to note that these items could be subject to federal estate tax, if the estate’s value is more than the exempt amount established by congress.

What if there is a surviving spouse?

Because of the conflicts that can arise in situations around estates and who gets what, Florida law lays out how the estate will be distributed. For instance, if there is a surviving spouse, they receive everything if there are no children. Further, the first $60,000 plus half of the remaining balance of the intestate estate if there are surviving descendants of the surviving spouse, or one-half of the intestate estate if there are surviving descendants, one of whom is not a lineal descendant of the surviving spouse. 

What if there is not a surviving spouse?

If there is not a surviving spouse, the law calls for the following in terms of distributing the estate:

  1. To the descendants of the decedent.
  2. If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
  3. If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
  4. If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order: a) To the grandfather and grandmother equally, or to the survivor of them. b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent. c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
  5. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.”

Ensure your assets go where you want them to.

The best way to ensure that your assets go where you would like them to end up is through estate planning, drawing up a will, and establishing a trust, if that is right for you. While it can be difficult to think about, estate planning puts you in charge of your assets, and lets you decide where they are distributed for maximal value. If you have been considering estate planning, contacting a qualified, experienced estate attorney can help you decide what’s right for you and your family. At the end of the day, they are your assets, and you should have the final say on where they go. 

Call The Mattar Firm to speak with one of our helpful, caring attorneys about asset protection. You can reach us through our contact form or by calling 239-222-2222.


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