Intestacy: It’s not as inappropriate as it sounds, but you should listen up | Martinez Law Estate Planning

Intestacy: It’s not as inappropriate as it sounds, but you should listen up

intestacy tampa estate planning attorney

Intestacy deals with the probate process of dealing with someone’s property and assets if they died and didn’t leave a will or anything prepared. To understand the nature of intestacy it is important to know the basics of uniform probate code. Why? Because probate code is the set of legal proceedings that follow the death of someone that left no instructions as to how they want their property distributed and is for the most part consistent across the United States although some differences between states does exist.

So what property exactly is being distributed through intestate proceedings?

Anything that would have been passed to an heir through a will is included in intestate succession.

Some examples for assets that would not be included in intestate succession are, anything in a transfer or pay on death accounts (because they are already set up), and anything you own jointly with rights of survivorship. Land, vehicles, objects, etc. that are  owned by you will then have to be distributed through intestate succession by the state.

In Florida, if you have children but no spouse your only heirs are your children, so they would receive equal ownership of all your property. Similarly, if you have a spouse but and no children, now your spouse gets everything.

Although, if you have living children and a surviving spouse, then your spouse gets half and your living children get half.   If you came with some bonus children from a previous marriage, then the surviving spouse gets half of your property and all your surviving children get the other half even if those children have not been in your life for decades.

On a more somber note, if the person that passes away is unmarried and has no children but is survived by parents then the parents of the deceased will inherit everything. If both parents are deceased and they have siblings, then the siblings are the ones that inherit the property and assets in question.

Now to break down what intestate shares the children of the deceased will receive. Adopted and biological children receive shares equally. Adversely, any children put for adoption and legally adopted by different parents will not inherit any intestate shares if the biological parent were to pass away. However, stepchildren, foster children, or any child under the care of the deceased that they did not legally adopt do not receive a share of intestate property.

If your child is conceived before your passing but not born until after your death, they will receive rights to an intestate share equal to your biological children that were born while you were still alive.

What happens to your property in the event that there is absolutely no surviving family nor a will that provides instructions on what to do in the event of the passing without a legally valid heir? This is when something called “escheat” occurs which essentially just means that the state gains possession of the property. For this to happen, there has to be absolutely no one that the deceased is survived by including cousins and fairly distant family members.

If there is surviving family and the state is having difficulty tracking them down, then there is a legal process where they have to declare a notice and wait a period of time before being able to claim ownership over the inheritance. In Florida, there is a ten-year waiting period where long lost family members can come forward and lay claim to the inheritance before it becomes solely the states possession.

If for instance, you feel as though you have a right to property that has been escheated to the state of Florida it would be wise to seek legal counsel and file a claim through the court. In addition to that specific scenario, a lot of these other situations frequently arise when family members pass away without having prepared a will and if you ever find yourself in a situation where you feel you are deserving of an intestate share you aren’t receiving, then it’s time to lawyer up and fight for what’s yours.

Similarly, if someone is trying to claim intestate rights over a loved ones property that you know is rightfully yours and not theirs then it may take legal action to ensure that the intestate shares end up with the right person.

If you need help with your Estate Planning, call us today at 727-363-1529 or online.

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