Probate Without a Will in Florida: How Intestate Succession Works

Probate without a will in Florida means the estate passes through “intestate succession” — a fixed set of rules in Chapter 732 of the Florida Statutes that decides who inherits when there is no valid will. The state does not take the property (a common fear); instead, the law writes a default will for the decedent based on who survived them. The estate still goes through formal probate in the county where the decedent lived, but a judge applies the statutory shares rather than the wishes the person never put in writing.

I have administered a good number of these estates here in Palm Beach County, and the pattern is almost always the same: the family assumes “everything goes to the spouse” or “everything is split evenly among the kids,” and the actual statute says something quite different. Worse, in an intestate estate there is no nominated personal representative and no instructions, which slows everything down at precisely the moment creditors are circling. Let me walk through how this works in practice.

What Intestate Succession Means When There Is No Will

An “intestate” estate is one where the decedent left no valid will, or left a will that disposes of only part of the property (partial intestacy). When that happens, Chapter 732, Part I, of the Florida Statutes controls. The court opens a probate proceeding, appoints a personal representative, identifies the legal heirs, satisfies valid debts and expenses, and then distributes what remains according to the statutory order.

Two points trip people up immediately. First, intestate succession governs only probate assets — property titled in the decedent’s sole name with no beneficiary designation. A life insurance policy, a “payable on death” bank account, a jointly held home with right of survivorship, or a properly funded living trust passes outside probate regardless of whether there is a will. Second, the rules apply mechanically. The judge has no discretion to reward the daughter who was the caregiver or to cut out the estranged son. The statute is the statute.

Florida’s Order of Intestate Heirs

Florida ranks heirs in a strict hierarchy. The estate flows down to the first category that has a living member, and stops there.

The Surviving Spouse’s Share — Section 732.102

The spouse’s share is the part most people get wrong, because the legislature changed it in 2011. Under the current version of Florida Statute 732.102, the surviving spouse receives:

• The entire intestate estate if the decedent left no surviving descendants at all.
• The entire intestate estate if all surviving descendants are also descendants of that spouse, and the spouse has no other descendants from a prior relationship.
• One-half of the intestate estate if the decedent has one or more descendants who are not descendants of the surviving spouse — the classic blended-family situation.
• One-half of the intestate estate if all of the decedent’s descendants are also the spouse’s, but the spouse separately has descendants who are not the decedent’s.

That third rule is the one that surprises grieving families most often. A man dies with a wife and two children from a first marriage; the wife does not inherit everything — she takes half, and the half-blood stepchildren take the rest. If you assumed the surviving spouse always inherits the whole estate, you are working from the pre-2011 law (and from how things work in many other states).

Descendants and Everyone Else — Section 732.103

Whatever does not pass to the spouse — or the entire estate if there is no spouse — descends under Florida Statute 732.103 in this order:

1. To the decedent’s descendants (children, then grandchildren, and so on), per stirpes.
2. If none, to the decedent’s father and mother equally, or to the survivor of them.
3. If none, to the decedent’s brothers and sisters and the descendants of any deceased siblings (nieces and nephews).
4. If none, the estate splits into paternal and maternal halves, passing to grandparents and their kindred — aunts, uncles, cousins.

“Per stirpes” means a deceased child’s share drops down to that child’s own children. If the decedent had three children and one predeceased leaving two kids of her own, the estate splits into three branches and the two grandchildren split their late mother’s one-third. Only if no relative can be found in any of these classes does the property “escheat” to the State of Florida, and in two decades of practice I have seen that happen perhaps a handful of times.

Who Counts as an Heir — and Who Doesn’t

Florida’s definitions of “descendant” and “heir” are precise, and the edges matter:

• Adopted children inherit fully from their adoptive family and, as a general rule, no longer inherit from the biological family.
• Children born outside marriage inherit from the mother automatically and from the father if paternity is established under Florida Statute 732.108.
• Half-blood relatives inherit, but under section 732.105 they take half the share a whole-blood relative would, when they inherit alongside whole-blood kin.
• Stepchildren who were never legally adopted are not intestate heirs, no matter how close the relationship was.
• A person must survive the decedent by 120 hours to inherit under the survivorship rule of section 732.601, or they are treated as having predeceased.

There is also the matter of the homestead and the statutory family protections. A surviving spouse and minor children have rights to homestead property, exempt personal property under section 732.402, and a family allowance under section 732.403 that come off the top, before general intestate distribution. These protections often reshape the math considerably and are a major reason intestate estates benefit from counsel.

The Creditor Problem in an Intestate Estate

This is where I spend most of my time, and it is the angle families underestimate. An estate without a will is not a smaller target for creditors — it is frequently a bigger one, because the delay in appointing a personal representative gives debts time to mature and the lack of estate planning usually means the decedent’s affairs were disorganized.

Florida runs two overlapping deadlines for creditors, and they are unforgiving:

• Under Florida Statute 733.702, a creditor who is served formal notice to creditors must file a statement of claim within 30 days of service; other creditors generally have 3 months from the first publication of the notice.
• Under Florida Statute 733.710, there is an absolute two-year bar measured from the date of death. After two years, the estate, the personal representative, and the beneficiaries are no longer liable on a claim — even one the creditor never had a chance to file.

Section 733.710 is a true statute of nonclaim, not an ordinary statute of limitations. It is jurisdictional: it bars the claim automatically and cannot be waived or extended in the probate. The flip side is the personal representative’s duty. If you serve a “reasonably ascertainable” creditor improperly — or fail to serve one you should have diligently identified — you can blow the protections and expose the estate. In an intestate case, where no one was managing the decedent’s bills and the heirs may not even know what was owed, getting the creditor process right is the single most valuable thing a probate attorney does. A botched notice can turn a clean inheritance into years of litigation.

For families navigating contested debts or disputes among heirs, the principles overlap heavily with adversarial probate elsewhere. Our colleagues at Morgan Legal handle the same fights in New York, and their explanation of is a useful primer on how these proceedings are structured, while their breakdown of illustrates the kind of conflict that intestacy can ironically intensify, since there is no document to fall back on.

How the Process Actually Unfolds

A typical intestate administration in Palm Beach County moves through these stages:

1. Petition for administration. An interested party — usually the spouse or an adult child — petitions the circuit court. Because there is no will naming an executor, section 733.301 sets the order of priority for who serves as personal representative; the surviving spouse has first claim, then the person selected by a majority of heirs.
2. Appointment and Letters. The court issues Letters of Administration, giving the personal representative authority to act.
3. Inventory and notice. The PR identifies assets, files an inventory, and publishes and serves the notice to creditors that starts the deadlines above.
4. Claims and debts. Valid claims, taxes, and administration expenses are paid in the statutory priority order of section 733.707.
5. Distribution. Only after creditors and costs are handled does the remaining property pass to the heirs under sections 732.102 and 732.103.

Florida also offers summary administration for smaller estates — generally where the probate assets are under $75,000 or the decedent has been dead more than two years — which is faster and avoids appointing a full personal representative. The two-year mark matters here too, because at that point the nonclaim bar of section 733.710 has run and the creditor exposure largely evaporates.

The Practical Takeaway

Dying without a will does not mean chaos, but it does mean surrendering control. The state’s default plan may send half your estate to children from a prior marriage, cut out a beloved stepchild, or hand decisions to whichever heir the statute happens to favor. And the creditor clock runs the entire time, indifferent to the family’s grief or confusion.

If you are facing an intestate estate in Palm Beach County, the most useful first step is a clear-eyed inventory: what is a probate asset, who the statutory heirs are, and what debts are lurking. If you are reading this before a death, the lesson is simpler — a basic will and estate plan overrides every default rule above. Our team handles both sides of that equation; you can review our Florida probate services, learn more about the firm’s broader , or contact our office to talk through a specific estate.

Frequently Asked Questions

Does the State of Florida take my property if I die without a will?

Almost never. Florida’s intestate succession statutes (Chapter 732) distribute your property to your spouse, descendants, parents, siblings, and more distant relatives in a set order. The estate only “escheats” to the state if no living heir of any kind can be located, which is rare.

Who inherits if a married person dies without a will in Florida?

It depends on the children. Under Florida Statute 732.102, the surviving spouse takes the entire estate if there are no descendants, or if all descendants are shared by both spouses and the spouse has no other children. But if the decedent has children from another relationship, the spouse takes only one-half, and the descendants take the rest.

How long do creditors have to make a claim against an intestate estate?

Two overlapping deadlines apply. A creditor served with formal notice must file within 30 days, and other creditors generally have 3 months from first publication of the notice (Fla. Stat. 733.702). On top of that, Florida Statute 733.710 imposes an absolute two-year bar from the date of death that cannot be waived or extended.

Do stepchildren inherit under Florida intestate succession?

No. Stepchildren who were never legally adopted are not intestate heirs in Florida, regardless of how close the relationship was. Only biological descendants, legally adopted children, and other relatives defined in Chapter 732 inherit when there is no will.

Can I avoid intestate probate altogether?

Yes. Assets with beneficiary designations, payable-on-death accounts, jointly titled property with right of survivorship, and assets held in a properly funded living trust pass outside probate. A valid will, while it doesn’t avoid probate, lets you control who inherits instead of relying on the statutory defaults.