Probate Without a Will in Florida: How Intestate Succession Works

When a person dies in Florida without a valid will, the estate passes by intestate succession—a default distribution scheme written into the Florida Probate Code (Chapter 732, Florida Statutes) that decides who inherits and in what shares. Probate still happens; the court simply substitutes the legislature’s plan for the wishes the decedent never wrote down. The result is rarely what most families assume, and it does nothing to shield assets from creditors.

I practice probate here in Palm Beach, and the call I take most often starts the same way: “Dad didn’t leave a will—what now?” The honest answer is that Florida already wrote one for him. Whether you like its terms is another matter. Below is how intestate succession actually works, who gets what, and—because it matters more than people expect—how creditor claims fit into the picture.

What “Dying Intestate” Means in Florida

A person who dies without a will dies intestate. If there’s a will but it doesn’t dispose of everything, the leftover assets pass partially intestate. Either way, the probate court appoints a personal representative (Florida’s term for an executor or administrator) and distributes the probate estate according to the statutory order in Florida Statutes § 732.101 through § 732.111.

One point trips up nearly everyone: intestate succession only governs probate assets. Assets that pass by their own contract or title never enter the intestate analysis at all. That includes:

• Property held as joint tenants with right of survivorship or as tenancy by the entirety between spouses;
• Bank or brokerage accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation;
• Life insurance and retirement accounts with a named, living beneficiary;
• Assets already titled in a living trust.

So the intestacy statute can be entirely beside the point if the decedent’s largest assets carried beneficiary designations. It governs whatever is left in the decedent’s sole name with no built-in transfer mechanism—and that is exactly the pool creditors can reach.

Florida’s Order of Intestate Succession

Florida distributes the intestate estate by degrees of kinship. The surviving spouse comes first, then descendants, then parents, then siblings, and outward from there. Here is the practical sequence.

If there is a surviving spouse

The spouse’s share under § 732.102 depends entirely on whether there are descendants, and whose descendants they are:

• No descendants: the surviving spouse takes the entire intestate estate.
• All descendants are children of both the decedent and the surviving spouse, and the spouse has no other children: the spouse again takes the entire estate.
• The decedent has one or more descendants who are not also the spouse’s descendants (a blended family): the spouse takes one-half, and the descendants share the other half.
• All descendants are shared, but the surviving spouse has descendants from another relationship: the spouse takes one-half, descendants take one-half.

This blended-family rule surprises people constantly. A second spouse who assumed she would inherit everything can find herself splitting the estate with stepchildren she barely knew.

If there is no surviving spouse

Under § 732.103, the estate passes in this order:

1. To the decedent’s descendants (children, then grandchildren, etc.), per stirpes;
2. If none, to the decedent’s parents equally, or to the survivor;
3. If none, to the decedent’s siblings and their descendants, per stirpes;
4. If none, the estate splits—one half to the paternal grandparents (or their descendants) and one half to the maternal side;
5. Failing all of that, to the kindred of the last deceased spouse, as if that spouse had survived and then died intestate.

If no heir can be found, the estate escheats to the State of Florida under § 732.107—a genuinely rare outcome, but the statute provides for it.

“Per Stirpes” and How Shares Actually Divide

Florida distributes to descendants per stirpes, meaning by representation. If the decedent had three children and one predeceased him leaving two children of her own, the estate divides into three shares; the two grandchildren split their late mother’s one-third. This is mechanical, not discretionary—the court has no power to weigh who “deserves” more or who was closest to the decedent.

That rigidity is the core problem with intestacy. The statute cannot account for the estranged child, the devoted stepchild who was never adopted (and therefore inherits nothing), or the unmarried partner of twenty years (who likewise inherits nothing under Florida law). A simple will would have solved all of it.

Special Florida Protections That Override Intestacy

Even in an intestate estate, several Florida protections sit on top of the succession statute and take priority over both heirs and creditors.

Homestead

The Florida Constitution (Article X, § 4) protects the homestead from forced sale by most creditors and restricts how it descends. If the decedent is survived by a spouse or minor child, homestead passes outside the ordinary probate estate and outside most creditor claims. This is one of the most powerful—and most litigated—features of Florida probate, and it frequently changes who really ends up with the house.

Family allowance and exempt property

The surviving spouse and dependent children are entitled to a family allowance (up to $18,000 under § 732.403) and to certain exempt property under § 732.402—household furnishings up to a statutory value and two motor vehicles—ahead of general creditors. These rights exist whether or not there is a will.

Elective share

A surviving spouse is also entitled to an elective share of 30% of the elective estate under § 732.201 and following. In a pure intestacy this rarely changes the outcome, but it becomes important when assets were structured to bypass the spouse.

Where Creditors Fit In—and Why This Matters Most in Intestate Estates

Here is the part families overlook until it is too late: intestate succession determines who inherits, but creditors are paid first. Heirs receive only what remains after valid claims, administration costs, and the protections above are satisfied. Dying without a will does nothing—nothing—to reduce what the estate owes.

Florida’s creditor process runs on tight deadlines. The personal representative must publish a Notice to Creditors and serve known or reasonably ascertainable creditors directly. Under § 733.702, a creditor generally must file a claim within the later of 3 months after the first publication or 30 days after being served. And § 733.710 imposes a hard outer limit—a 2-year statute of repose from the date of death—after which most claims are barred regardless of publication.

Claims are then paid in the priority order set by § 733.707: administration costs first, then funeral expenses (capped), then debts and taxes with federal preference, then medical expenses of the last 60 days, the family allowance, and finally general creditors. If the estate is insolvent—more debt than assets—lower-priority creditors and all heirs may receive nothing.

In an intestate estate this dynamic is sharper than in a planned one. There was no trust to hold assets, no beneficiary designations to keep accounts out of probate, no advance thought given to liquidity. The probate estate is often larger, fully exposed, and the family is negotiating with creditors at the same time they’re arguing over shares. A diligent personal representative can defeat untimely or improperly filed claims—but only if someone is paying attention to the deadlines. For a fuller treatment of administering an estate and managing claims, this overview of walks through the personal representative’s duties step by step.

The Probate Process When There’s No Will

Mechanically, intestate probate looks much like testate probate, with a few differences:

1. Petition for administration is filed in the circuit court for the county of the decedent’s domicile—here in Palm Beach County, that’s the probate division.
2. The court appoints a personal representative. With no will naming one, § 733.301 gives priority to the surviving spouse, then to the person selected by a majority of the heirs.
3. The PR marshals assets, gives notice to creditors, and inventories the estate.
4. Claims are reviewed, objected to where appropriate, and paid in statutory priority.
5. The remaining assets are distributed to the heirs by the intestacy formula, and the estate is closed.

Small estates may qualify for summary administration (estates under $75,000 or where the decedent has been dead more than two years) or even disposition without administration for very modest estates—a faster path when the numbers fit.

Disputes Are Common—and Avoidable

Without a will to point to, intestate estates breed conflict: arguments over heirship, paternity, who serves as personal representative, and whether a late-surfacing document was really a valid will. These fights resemble will contests in their procedure and intensity; the analysis of illustrates the kind of evidentiary battles that erupt when families disagree about a decedent’s intentions. The cleanest fix is upstream: a properly executed will, and ideally a trust. If you don’t yet have one, start with our guide to Florida wills, and review the broader Florida probate process so you know what your family would otherwise face.

If you’re handling a Florida estate, our Florida team can help directly through Morgan Legal’s Florida probate practice, and you can always reach our Palm Beach office to talk through the specifics of your situation.

The Bottom Line

Florida’s intestate succession statute is a safety net, not a plan. It distributes by bloodline, ignores intentions it can’t read, and pays every creditor before a single heir sees a dollar. For estates with debt—and most have more than the family realizes—dying without a will simply hands the hardest decisions to a court and the calendar. The good news is that almost all of it is preventable with an afternoon of planning. The better news, if you’re already in it, is that an experienced probate attorney can protect the estate against improper claims and move it through Palm Beach County probate efficiently.

Frequently Asked Questions

Who inherits if you die without a will in Florida?

Florida’s intestate succession statute (Fla. Stat. 732.101-111) controls. The surviving spouse inherits first-everything if there are no descendants or only shared descendants, or one-half in a blended family. With no spouse, the estate passes to descendants, then parents, then siblings, then more distant relatives, and finally escheats to the state if no heir exists.

Does a surviving spouse automatically get everything in Florida?

Not always. The spouse takes the entire intestate estate only if there are no descendants, or if all descendants are children of both spouses and the surviving spouse has no other children. If the decedent or the spouse has children from another relationship, the spouse takes one-half and the descendants share the rest.

Do creditors still get paid if there is no will?

Yes-and they are paid before any heir inherits. The personal representative must publish a Notice to Creditors; claims are generally due within 3 months of publication, with a 2-year statute of repose from death under Fla. Stat. 733.710. Claims are paid in the priority order of section 733.707, and heirs receive only what remains.

How long does intestate probate take in Palm Beach County?

Formal administration typically runs about 6 to 12 months, driven largely by the 3-month creditor claim period and any disputes over heirship or the personal representative. Smaller estates may qualify for summary administration, which is considerably faster.

Can I avoid Florida intestate succession?

Yes. Executing a valid will lets you choose your own beneficiaries and personal representative. Beyond that, a living trust, joint titling, and payable-on-death or beneficiary designations move assets outside probate entirely, reducing both intestacy exposure and, in some cases, creditor reach.