Probate Without a Will in Florida: How Intestate Succession Works

When a Florida resident dies without a valid will, their probate assets pass through intestate succession—a default inheritance scheme written into Chapter 732 of the Florida Statutes. In plain terms, the state supplies a will the decedent never wrote, distributing property to surviving family members in a fixed order of priority. The estate still goes through probate; the only difference is that statute, not a written document, names the heirs.

I’ve handled enough of these in Palm Beach County to tell you the same thing I tell families across my desk: dying without a will doesn’t mean the state seizes your house. That myth is stubborn and wrong. What actually happens is more orderly—and sometimes more frustrating—than people expect. Below is how it really works.

What “Intestate” Means and Which Assets It Touches

A person who dies without a will dies intestate. If they left a will that a court refuses to admit—because it wasn’t signed properly, was revoked, or fails for some other reason—the estate is treated the same way. The statutory rules in Florida Statutes Chapter 732 then govern who inherits.

Here’s a distinction that trips up nearly everyone: intestate succession only controls probate assets. A large share of what most people own never touches probate at all, because it passes by its own contract or title.

• Pass outside probate (no will needed): jointly held property with rights of survivorship, accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation, life insurance and retirement accounts with named beneficiaries, and assets held in a living trust.
• Pass through intestate succession: property titled in the decedent’s sole name with no beneficiary—a solo bank account, a car, a brokerage account, or real estate held individually.

So before you assume “no will” means chaos, look at how each asset is titled. A retiree who named beneficiaries on everything may leave almost nothing for intestate law to govern. The next-door neighbor who owned a free-and-clear condo in their own name leaves a probate estate that runs entirely on statute.

Who Inherits Under Florida Intestate Succession

Florida’s distribution scheme follows bloodline and marriage in a strict hierarchy. The surviving spouse comes first, then descendants, then parents, then siblings, then more remote relatives. The exact split depends on who survives.

When There Is a Surviving Spouse

Section 732.102 controls the spouse’s share, and it hinges on the children:

1. Spouse, no descendants: the spouse takes the entire intestate estate.
2. Spouse and descendants, all shared by both: the spouse takes the entire intestate estate, provided the spouse has no other living descendants.
3. Spouse with descendants from another relationship (his, hers, or the decedent’s from a prior marriage): the spouse takes one-half, and the decedent’s descendants share the other half.

That third scenario is the one that surprises blended families. A man who remarries late in life and dies without a will may leave his new wife only half the probate estate, with his adult children from a first marriage taking the rest. He almost certainly never intended that ratio—but without a will, the statute decides for him.

When There Is No Surviving Spouse

Section 732.103 walks down the family tree in order. The intestate estate passes to:

• The decedent’s descendants (children, then grandchildren if a child predeceased), divided per stirpes;
• If none, to the decedent’s parents, equally, or to the survivor;
• If none, to the decedent’s siblings and their descendants, per stirpes;
• If none, the estate splits between the maternal and paternal sides—grandparents, then aunts, uncles, and cousins.

Per stirpes means “by the branch.” If your daughter died before you but left two children, those two grandchildren split the share your daughter would have taken. Florida applies per stirpes distribution under section 732.104, so the line continues down through generations rather than collapsing toward whoever happens to be alive.

The Homestead, the Spouse, and Why Florida Is Different

Florida’s homestead protections rewrite the rules for the family home, and this is where out-of-state assumptions go wrong. Under Article X, Section 4 of the Florida Constitution and section 732.401, a decedent generally cannot leave homestead property freely if survived by a spouse or minor child—and intestacy doesn’t override those constraints.

When a spouse and descendants both survive, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants. Alternatively, under section 732.401(2), the spouse may elect within six months to take an undivided one-half interest as a tenant in common instead of the life estate. Which option serves a family better is a real decision with tax and practical consequences—not a formality.

Layered on top are the spousal entitlements that exist regardless of intestacy: the elective share (up to 30% of the elective estate under sections 732.201–732.2155), exempt property under section 732.402, and the family allowance under section 732.403. A surviving spouse in Palm Beach almost never walks away with nothing, even when the will-substitute structure seems to point that way.

How the Probate Case Actually Proceeds

Intestate estates still go through the same probate machinery as testate ones. Because no will names an executor, the court appoints a personal representative—Florida’s term for the administrator—following the priority in section 733.301: the surviving spouse first, then the person chosen by a majority of heirs, then the heir nearest in degree.

From there the process tracks ordinary administration:

1. File the petition for administration in the county of the decedent’s residence (Palm Beach County for most of our clients).
2. Obtain Letters of Administration appointing the personal representative.
3. Notify creditors and pay valid claims within the statutory window under section 733.702.
4. Inventory and value the assets.
5. Distribute what remains to the heirs as the intestacy statute dictates.

Smaller estates may qualify for summary administration if the probate assets total $75,000 or less, or if the decedent has been dead for more than two years. That shorter path still relies on the intestate scheme to identify who receives the property—it just skips the appointment of a personal representative and moves faster.

Where Intestate Estates Turn Contested

Our firm focuses heavily on disputes that begin during incapacity and carry into probate. When someone dies intestate after a period under guardianship, the friction is often already baked in. Family members who fought over the guardianship—who controlled the accounts, who lived in the home, who paid for care—rarely make peace once the person dies. The absence of a will removes the one document that might have settled their expectations.

Common flashpoints include disputed heirship (an unacknowledged child, a questionable marriage), claims that the personal representative is self-dealing, and disagreements over homestead. These are the same fault lines that surface in elsewhere—the legal theories differ by state, but the human conflict is identical. If you’re staring at a contested intestate estate, the structure of the probate proceeding itself becomes the battleground, much as it does in a typical .

What You Can Do Instead—and What to Do Now

If you’re reading this while you’re still healthy, the lesson is simple: a basic will lets you override every default rule above. You decide the shares, name a personal representative you trust, and spare your family the statutory roulette. For larger or blended families, a revocable trust can keep the home and accounts out of probate entirely.

If you’re reading this because someone has already died without a will, your priorities are different. Secure the assets, identify the heirs honestly, and get the administration opened before creditor and homestead deadlines compress your options. The earlier you map the title of each asset against the intestacy statute, the fewer surprises later.

Either way, Florida’s intestate rules are workable but rigid—and rigidity, in a family that doesn’t fully agree, is where litigation grows. For a tailored read on your situation, see our overview of Florida probate administration, our colleagues’ , or contact our Palm Beach office to talk through the specific estate in front of you.

Frequently Asked Questions

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

No. This is a persistent myth. Florida’s intestate succession statute (Chapter 732) distributes your probate assets to your surviving family in a set order—spouse, descendants, parents, siblings, and more distant relatives. The state only inherits through escheat in the rare case where no living relative can be found at all.

How much does a surviving spouse inherit under Florida intestacy?

It depends on the children. Under section 732.102, the spouse takes the entire intestate estate if there are no descendants, or if all descendants are shared by both spouses and the survivor has no other descendants. But if either spouse has descendants from another relationship, the surviving spouse takes only one-half, and the decedent’s descendants share the other half.

Do all assets go through probate when there is no will?

No. Only assets titled in the decedent’s sole name with no beneficiary pass through intestate succession. Jointly owned property with survivorship rights, payable-on-death and transfer-on-death accounts, life insurance, retirement accounts with named beneficiaries, and trust assets all pass outside probate regardless of whether a will exists.

What happens to the family home if someone dies intestate in Florida?

Florida’s homestead protections control. If a spouse and descendants both survive, the spouse generally receives a life estate with a remainder to the descendants, or may elect within six months to take an undivided one-half interest as a tenant in common under section 732.401. These constitutional protections override the ordinary intestate distribution.

Who becomes the personal representative when there is no will?

The court appoints one under the priority in section 733.301: the surviving spouse first, then a person selected by a majority of the heirs, then the heir nearest in degree of kinship. The personal representative administers the estate the same way an executor would under a will.