Probate Without will Florida

What Happens When Someone Dies Without a Will in Florida?

When someone dies without a will in Florida, their property does not simply go to the state or disappear. Florida has a detailed statutory framework — called intestate succession — that determines exactly who inherits, how much they receive, and in what order. The rules are found in Florida Statutes §§ 732.101 through 732.111, and they apply automatically to any property that was not transferred through a will, trust, beneficiary designation, or other non-probate arrangement.

The results of intestate succession are often not what the decedent would have wanted. Blended families face particularly difficult outcomes, with the surviving spouse potentially receiving only half of the estate. And without a will, the family has no say over who serves as personal representative beyond the statutory preference order.

This guide explains exactly how Florida’s intestate succession works, who has priority to serve as personal representative, and what the administration process looks like for estates without a will. At Zoecklein Law, we handle intestate estate administration throughout Tampa, Lakeland, St. Petersburg, Brandon, Bradenton, and New Port Richey.

The Basic Rule: Florida Statute § 732.101

Florida Statute § 732.101(1) establishes the foundational principle: “Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code.” The statute further provides that “the decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.” Fla. Stat. § 732.101(2).

This means inheritance rights arise immediately at death — not when probate is opened, not when the court enters an order, and not when assets are distributed. The probate process simply identifies the heirs, resolves any disputes, pays debts, and formally transfers title. The heirs’ legal right to the property already exists from the moment of death.

Florida courts have consistently applied this framework. In In re Estate of Salathe, 703 So.2d 1167 (Fla. 2d DCA 1997), the Second District Court of Appeal held that Florida’s intestacy laws govern the distribution of property located in Florida, even when the parties’ personal relationships are governed by foreign law. In that case, an estranged husband was entitled to his share as “surviving spouse” under Florida’s intestate succession statute because the parties were still legally married under German law at the time of death.

What the Surviving Spouse Receives

The surviving spouse’s share depends entirely on the family structure. Florida Statute § 732.102 establishes four scenarios:

Scenario 1 — Spouse inherits everything: If the decedent has no surviving descendants, the surviving spouse receives the entire intestate estate. Fla. Stat. § 732.102(1).

Scenario 2 — Spouse inherits everything: If all of the decedent’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants from other relationships, the surviving spouse receives the entire intestate estate. Fla. Stat. § 732.102(2). This is the typical nuclear family — married couple, all children are children of both spouses, no stepchildren.

Scenario 3 — Spouse inherits half: If the decedent is survived by one or more descendants who are not also descendants of the surviving spouse, the surviving spouse receives one-half of the intestate estate. Fla. Stat. § 732.102(3). This is the most common blended family situation — the decedent has children from a prior relationship.

Scenario 4 — Spouse inherits half: If all surviving descendants are descendants of both the decedent and the surviving spouse, but the surviving spouse has one or more descendants who are not descendants of the decedent, the surviving spouse receives one-half of the intestate estate. Fla. Stat. § 732.102(4). This covers the less obvious blended family — the decedent has no stepchildren, but the surviving spouse has children from a prior relationship.

Why this matters: Many married couples assume the surviving spouse will inherit everything. In scenarios 3 and 4, that assumption is wrong. The surviving spouse receives only half, and the decedent’s descendants receive the other half. This is one of the most compelling reasons to have a will or trust — without one, the law may not match your wishes.

Additional spousal protections: Beyond the intestate share, the surviving spouse is also entitled to homestead rights, exempt property under Florida Statute § 732.402, and family allowance. These protections exist regardless of whether the decedent had a will. As the Second District Court of Appeal explained in Ballard v. Pritchard, 332 So.3d 570 (Fla. 2d DCA 2021), if homestead property is “not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes.”

How Descendants Inherit: Per Stirpes Distribution

Florida mandates per stirpes distribution for all intestate inheritance. Under Florida Statute § 732.104, “descent shall be per stirpes, whether to descendants or to collateral heirs.” Fla. Stat. § 732.104.

Per stirpes means “by the branch.” The estate is divided at the first generation of descendants, with each branch receiving an equal share. If a member of that generation has predeceased the decedent, their share passes down to their own descendants.

The Fourth District Court of Appeal explained this in Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA 2008): “under Florida’s intestacy laws, if there is no surviving spouse, property passes to the decedent’s lineal descendants per stirpes,” meaning surviving children take equal shares while children of predeceased descendants split their deceased parent’s share.

Example: A decedent has three children — Child A, Child B, and Child C. Child B predeceased the decedent but left two children (grandchildren of the decedent). Under per stirpes distribution, the estate is divided into three equal shares: Child A receives one-third, Child C receives one-third, and Child B’s two children split Child B’s one-third (each receiving one-sixth).

When There Are No Spouse or Descendants: The Full Hierarchy

Florida Statute § 732.103 establishes the complete order of inheritance when there is no surviving spouse, or for the portion not passing to the surviving spouse:

First: Descendants of the decedent (children, grandchildren, etc.), per stirpes.

Second: If no descendants, to the decedent’s father and mother equally, or to the survivor of them.

Third: If no parents, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters, per stirpes.

Fourth: If no siblings or their descendants, the estate is divided in half — one half to the paternal side and one half to the maternal side. On each side, the estate goes first to grandparents equally (or the survivor), then to uncles and aunts and descendants of deceased uncles and aunts. Fla. Stat. § 732.103(4).

Fifth: If there is no kindred on either the paternal or maternal side, the entire estate goes to the other side’s kindred. Fla. Stat. § 732.103(4)(c).

Sixth: If no kindred of either part exists, the estate goes 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.” Fla. Stat. § 732.103(5).

If no one qualifies: The estate escheats to the State of Florida. The Fourth District Court of Appeal addressed the outer limits of this hierarchy in Department of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023), holding that second cousins and second cousins once removed were not “heirs” under Florida’s intestate succession statutes, resulting in escheat to the state.

Half-blood relatives: Florida Statute § 732.105 provides that when collateral kindred include both whole-blood and half-blood relatives, “those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.”

Who Serves as Personal Representative?

Without a will naming a personal representative, Florida Statute § 733.301 establishes a priority order for appointment in intestate estates:

1. The surviving spouse. First preference goes to the decedent’s surviving spouse.
2. Person selected by a majority in interest of the heirs. If the surviving spouse does not seek appointment (or there is no surviving spouse), the heirs can collectively choose a personal representative by majority vote based on their inheritance shares.
3. The heir nearest in degree. If no majority selection is made, the closest heir can apply. If more than one heir of the same degree applies, “the court may select the one best qualified.” Fla. Stat. § 733.301(1)(b).

Florida courts take this statutory preference seriously. In Kavanaugh v. Thomas, 390 So.3d 751 (Fla. 5th DCA 2024), the Fifth District Court of Appeal reversed a trial court that had appointed someone other than the statutorily preferred surviving spouse, holding that while “trial courts are vested with the ‘inherent authority to consider a person’s character, ability, and experience to serve as personal representative,’” a court “may properly decline to appoint the statutorily preferred person only when the record demonstrates that person is not fit to be appointed.”

The Second District reached the same conclusion in Stalley v. Williford, 50 So.3d 680 (Fla. 2d DCA 2010), reversing a trial court that had appointed the decedent’s father over the heirs’ chosen representative. The court held there was “a complete absence of evidence to suggest that Stalley was unfit to serve” and that “the court abused its discretion by appointing the decedent’s father rather than the representative chosen by the heirs.”

Protection for preferred appointees: If a person entitled to preference was not served with formal notice of the initial appointment, they can later seek to have the letters revoked and be appointed themselves. Fla. Stat. § 733.301(4).

Guardian’s right to select: A guardian of the property of an incapacitated heir “who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.” Fla. Stat. § 733.301(2).

Formal Administration vs. Summary Administration for Intestate Estates

Intestate estates can proceed through either formal administration or summary administration, depending on the estate’s size and circumstances.

Summary administration under Florida Statute § 735.201 is available when the value of the estate subject to administration (excluding exempt property) does not exceed $75,000, or when the decedent has been dead for more than 2 years. No personal representative is appointed. Instead, the court enters an order of distribution directly to the heirs. Under Florida Probate Rule 5.530, if the court determines the estate qualifies, “it must enter an order distributing the probate assets and specifically designating the person to whom each asset is to be distributed.”

Recipients under summary administration face personal liability for estate claims, “but only to the extent of the value of the estate of the decedent actually received by each recipient, exclusive of the property exempt from claims of creditors.” Fla. Stat. § 735.206(4)(e).

Formal administration under Chapter 733 involves the full appointment of a personal representative, publication of notice to creditors, inventory and accounting requirements, and court supervision of the entire process. This is required when the estate exceeds the $75,000 threshold and the decedent has been dead for less than two years.

Key difference for intestate estates: In formal administration of intestate estates, the personal representative must identify all heirs — which may require genealogical research if the family tree is unclear. Disputed relationships, unknown children, and paternity questions can all complicate and extend the administration.

Common Problems in Intestate Estates

Blended family disputes. When the surviving spouse receives only half the estate and the decedent’s children from a prior relationship receive the other half, conflict is almost inevitable — particularly over the family home, personal property, and joint financial accounts.

Homestead complications. If the decedent’s homestead was not held jointly or in trust, and the decedent is survived by both a spouse and lineal descendants, the surviving spouse receives only a life estate in the homestead — not outright ownership. Ballard v. Pritchard, 332 So.3d 570 (Fla. 2d DCA 2021). The descendants receive a vested remainder. This means the surviving spouse can live in the home but cannot sell it without the descendants’ cooperation.

Personal representative disputes. Without a will naming a personal representative, family members may disagree about who should serve. While the statute provides a priority order, these disputes can delay the opening of the estate and add legal costs.

Unknown heirs. When the decedent has no close relatives, identifying the proper heirs under the § 732.103 hierarchy may require extensive research into extended family. The estate may need to hire a genealogist or publish notice seeking potential heirs.

Escheat risk. If no qualifying heirs can be identified, the estate escheats to the State of Florida. As demonstrated in Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023), Florida courts enforce the statutory limits on which relatives qualify as “heirs.”

Why Having a Will or Trust Matters

Florida’s intestate succession framework provides a default distribution plan — but it is the legislature’s plan, not yours. A properly executed will allows you to choose who inherits your property, name the person you want to serve as personal representative, designate guardians for minor children, make specific gifts of personal property or sentimental items, and direct how debts and expenses are paid.

A revocable living trust goes further by avoiding probate entirely, maintaining privacy, and providing for management of assets if you become incapacitated.

Contact Zoecklein Law

If you need to administer an intestate estate, or if you want to create a will or trust to ensure your property passes according to your wishes rather than Florida’s default rules, Zoecklein Law can help. We serve clients throughout Tampa, Lakeland, St. Petersburg, Brandon, Bradenton, and New Port Richey.

Contact us for a consultation.

Legal Authority Referenced

Statutes: – Fla. Stat. § 732.101 — Intestate estate – Fla. Stat. § 732.102 — Spouse’s share of intestate estate – Fla. Stat. § 732.103 — Share of other heirs – Fla. Stat. § 732.104 — Inheritance per stirpes – Fla. Stat. § 732.105 — Half blood – Fla. Stat. § 733.301 — Preference in appointment of personal representative – Fla. Stat. § 735.201 — Summary administration; nature of proceedings – Fla. Stat. § 735.206 — Summary administration distribution – Fla. Probate Rule 5.530 — Summary Administration

Case Law: – Kavanaugh v. Thomas, 390 So.3d 751 (Fla. 5th DCA 2024) — Statutory preference for personal representative must be followed absent evidence of unfitness – Coleman v. Horn, 422 So.3d 730 (Fla. 3d DCA 2025) — Procedural requirements for preservation of objections in probate proceedings – Department of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023) — Second cousins not “heirs” under intestate succession; escheat to state – Ballard v. Pritchard, 332 So.3d 570 (Fla. 2d DCA 2021) — Homestead descent via intestate succession when devise is invalid; life estate to spouse with vested remainder to descendants – Stalley v. Williford, 50 So.3d 680 (Fla. 2d DCA 2010) — Court cannot override statutory preference for personal representative without evidence of unfitness – Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA 2008) — Per stirpes distribution explained for lineal descendants – In re Estate of Salathe, 703 So.2d 1167 (Fla. 2d DCA 1997) — Florida intestacy laws apply to Florida property; foreign law may determine marital status

Secondary Sources: – Fla. Jur. 2d Decedents’ Estates §§ 15, 500 – Belcher’s Redfearn Wills and Administration in Florida § 6:5 – 31 Am. Jur. Proof of Facts 3d 433

FAQ

1. What happens to your estate if you die without a will in Florida? Under Florida Statute § 732.101, your property passes to your heirs according to the state’s intestate succession laws. The surviving spouse receives either the entire estate or half, depending on family structure (§ 732.102). Descendants inherit per stirpes (§ 732.104). If there is no spouse or descendants, the estate passes to parents, siblings, and more distant relatives in a prescribed order (§ 732.103).
2. Does the surviving spouse inherit everything if there is no will in Florida? Not always. Under Fla. Stat. § 732.102, the surviving spouse receives the entire estate only if there are no descendants, or if all descendants are also the spouse’s descendants and the spouse has no other children. In blended families — where the decedent or the surviving spouse has children from other relationships — the surviving spouse receives only one-half of the intestate estate.
3. What is per stirpes distribution in Florida? Per stirpes means “by the branch.” Under Fla. Stat. § 732.104, the estate is divided at the first generation of descendants, with each branch receiving an equal share. If a descendant predeceased the decedent, their share passes to their own children. As explained in Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA 2008), surviving children take equal shares while children of predeceased descendants split their deceased parent’s share.
4. Who serves as personal representative if there is no will in Florida? Under Fla. Stat. § 733.301, the surviving spouse has first preference, followed by a person selected by a majority in interest of the heirs, then the heir nearest in degree. Courts must follow this statutory preference unless the record demonstrates the preferred person is unfit to serve. Kavanaugh v. Thomas, 390 So.3d 751 (Fla. 5th DCA 2024).
5. What happens to the house if someone dies without a will in Florida? If the home qualifies as protected homestead and the decedent is survived by a spouse and lineal descendants, the surviving spouse receives a life estate and the descendants receive a vested remainder. Ballard v. Pritchard, 332 So.3d 570 (Fla. 2d DCA 2021). This means the spouse can live in the home but cannot sell it without the descendants’ cooperation.
6. Can an intestate estate use summary administration in Florida? Under Fla. Stat. § 735.201, summary administration is available for intestate estates when the estate’s value (excluding exempt property) does not exceed $75,000, or when the decedent has been dead for more than 2 years. Recipients are personally liable for estate claims up to the value they received. Fla. Stat. § 735.206.