How Does Probate Work Without a Will?

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Even if you’ve been lucky enough not to lose many people in your life, you still probably have an idea in your mind about how the distribution of an estate works after someone passes away. You might picture the reading of a will or imagine an attorney or someone close to the deceased person cataloging the estate, contacting beneficiaries, and distributing property in accordance with the wishes of the deceased person.

But what if there is no will?

Any St. Petersburg estate attorney can tell you how important it is to have a will that spells out what you want to happen to your possessions, assets, and money after you die. But the reality is that it’s not uncommon for people to pass away without formally outlining their wishes. Often, people plan to make a will and believe that they have plenty of time to do so, but don’t get around to it before it’s too late. In other cases, people may believe that they don’t need a will because their family will know what to do with their estate after they die. Some don’t have a will drawn up because they don’t believe that they have enough assets or wealth to warrant taking that step. No matter what the reason, the result is the same: the estate must be settled without the benefit of a formal plan laid out by the deceased person.

Who Takes Responsibility?

If there is no will, there is no person specifically named to be the executor of the will, so one of the first orders of business is to determine who will take responsibility for settling the estate and resolving any issues.

The state will have a list of people who are eligible to become the executor. The specifics can vary somewhat, but generally, the first choice is the surviving spouse of the deceased person, and if there’s no surviving spouse, then one of the adult children of the deceased person is next in line, followed by other family members.

When there’s no will, the estate may be subject to probate court proceedings, and the court will appoint the executor based on that priority list of people eligible to be executor. The person who is ultimately chosen to act as executor does not have to act alone, however – they can hire attorneys and other professionals, like accountants, real estate brokers, and financial advisors to give them the expertise and advice that they need to make good decisions. The fees for these professionals are to be paid out of the estate, not out of the executor’s pocket.

What is Subject to Probate?

You probably know that probate is the legal process by which assets in the estate are distributed. But what you may not know is that not everything in an estate is necessarily subject to probate. This can be important information, because in the aftermath of a loss, survivors may need access to certain assets right away, and probate can be a lengthy process. But if there are things in the estate that are not subject to probate, those assets may be immediately available to survivors.

Some of the assets that are not subject to probate include:

The proceeds from a life insurance policy
Funds in an IRA, 401k, or retirement plan with a named beneficiary
Money in a payable on death bank account
Any stocks, securities, property, or vehicles that are transferable on death
Property in a living trust

Additionally, any assets that are held jointly are also not subject to probate. That includes things like joint bank accounts or real estate that’s deeded to more than one person. The surviving person named on these assets has immediate access to them.

Who Gets What?

Outside of assets that aren’t subject to probate, the most important question on many people’s mind is who will inherit which parts of the estate. As with the executorships, states lay out rules for who will inherit what in the absence of specific instructions from the deceased person.

As a general rule, if there is no will, property is distributed among spouses, children, and other adult relatives. Romantic partners who are not legally recognized, friends of the deceased, and charities or other institutions do not receive anything from the estate of a person who passed away with no will unless one of the people who did inherit decides to share what they received.

While the idea that spouses and children inherit may sound simple, it isn’t always as simple as it sounds. For example, when a couple is separated but not legally divorced, the surviving spouse may still inherit even if the couple was planning on divorcing. Common-law marriages are recognized in some states but not in Florida, so even in cases where a couple lived together, presented themselves as married and thought of themselves as married, one may not be eligible to inherit after the other passes away if there is no will.

Children’s inheritances can be complicated as well. People in blended families should be aware that stepchildren who have not been formally adopted by their stepparent may not be eligible to inherit from their stepparent in the absence of a will. And while the child of unmarried parents is eligible to inherit from their birth mother, they may need to provide proof of the relationship in order to be able to inherit from their birth father.

When someone dies without a will, there’s a risk that the executor of their will could be someone whom they would not have chosen to put in charge of their affairs. There’s also a chance that people whom they would have preferred not to inherit their assets end up with them, and a very good chance that some of the people who the deceased person would have liked to leave assets to will not receive them. These situations frequently cause tension and conflict between family members and friends. Making a will is the only way to avoid misunderstandings and unwanted estate distribution outcomes. The Law Offices of David Folkenflik P.A. can help you ensure that your estate is settled according to your preferences so you can avoid these types of conflicts.

"The information provided herein is simply a brief overview of the Florida law on this particular matter. It should not be relied upon for legal purposes, as the facts and circumstances to any specific legal matter may vary substantially from the limited explanation and application of often complicated legal rules and principles that may be addressed herein, or applicable in your particular legal matter. You should only rely upon legal advice provided to you by a licensed attorney who has had an opportunity to fully evaluate your particular legal matter".

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