My mother died without a Will. How will her estate be settled?
The situation that your mother died without a valid will makes her estate administration a little more complex because she is considered to have died "intestate"
What does intestate mean?
The phrase intestate means that a person died without leaving a last will and testament for the disposition of the property.
So who will settle the estate when a person dies without a Will?
When a person dies intestate, the law of the state where they resided will dictate how the person's assets are distributed.
In Florida, the statutes of intestate are in chapter 735. Generally, the estate will be settled by a degree of kinship of a beneficiary to the heir.
In my experience, the issues of spousal rights of descendants, Florida Homestead protection for minor children and spouse come into play much more prominently in intestate estate administration real property, as well as what personal property is exempt from claims by the decedent's creditors.
Who is the personal representative when a person dies intestate?
Who is the personal representative when a person dies intestate?
Again, we have to look to the Florida statutes as to who has the preference to serve.
But just because someone has a statutory preference does not necessarily mean that they are the best person to administer the estate, and often times the decision as to who will serve as the personal representative will have to be agreement among the heirs. If people cannot agree, the circuit court judge may appoint a person based upon the statute and their willingness to serve, particularly if there are conflicting petitions.
What is an Affidavit of Heirs?
An affidavit of heirs is a sworn statement as to who are the descendants, spouse, children, parents, siblings, and more distant kinship.
This is a required document and all intestate estate administration and helps the court understand the family relationships of the decedent and how to apply the intestate statutes to this situation.
The affidavit of heirship should be filed by someone of a close relationship that has good knowledge of the decedent's family and bloodline.
In very complex situations, it may be necessary for outside genealogical analysis and a report filed with the court. This will come up in the case where there are no known family members or the court determines that the affidavit filed is insufficient.
Why is intestate estate Administration so much more complicated?
When someone doesn't set out their wishes in a Last Will and Testament, the estate administration is much more complex, and in my experience, it seems like there are many more “interested parties “in settling the decedent's affairs. Families do not always agree as to the course of action, and the Statutes that cover intestate estate administration are complex, and oftentimes, there are competing interests that need to be dealt with.
From the very beginning, with intestate estate administration, there is uncertainty as to who is the rightful person to settle the decedent's affairs and then who are the rightful beneficiaries. The probate process is still very similar, but it's much more work for all involved because of notice and judicial determination of the multiple issues.
And all of this happens at a time when the family is grieving, and emotions are usually running very high.
Ask a Question
If you have a general question that you would like answered by a Florida Estate Planning and Administration Attorney, please use the contact form to send Shawn a question. As long as it is general (and not too specific to your unique situation), Shawn will answer these questions in the form of a Frequently Asked Question to help you but also help others in our community.
Shawn can not offer legal advice in this format. He can only provide general information that you may find helpful. You should call an attorney and seek legal advice if you need specific legal advice.
Give us a call. We can help.
Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.
