Probate without a Will

Posted by Joseph W. Lehn


David’s father passed away recently. He wants to open a probate to distribute his father’s assets.  However, he read online that he needs a will to initiate the probate.  Here’s the problem, he says his father doesn’t have a will.  So now what should he do?


First of all, he needs to be sure that there is no will. Just because you do not quickly find one does not mean there is not one in a safe deposit box or hidden away with other papers. Now if his father had told him that he in fact had no will, then you can be fairly sure there isn’t one.


But, without a will, is a probate still possible?


Yes. Florida has an “intestate succession” law which states, in the absence of a will, who will inherit the estate. The manner of distribution will depend on which relatives of the deceased are alive at the time the person passed away.


For example, if there is a surviving spouse but no “lineal descendants” (like children, grandchildren, etc), then the spouse gets the entire estate. If there is no living spouse, but there are lineal descendants the children will inherit the estate in equal parts.


If there isn’t a spouse or any descendants?  What happens in that case?


Then the estate goes to any surviving parents of the deceased. If no parents, then the estate will be distributed to siblings. Many times this intestate succession is not exactly what the deceased would have wanted. This is a good reason to have a will.


What if there is a copy of the will, but the original can’t be found?

Unfortunately, this is a problem. Probate courts in Florida may only accept a copy of a will after a time-consuming and costly process to “establish a lost will.” The testimony from a disinterested witness to prove the execution and contents of a lost will is needed.  If there is an exact copy of the lost original will, the testimony of only one witness to the will execution is required.  However, if it’s an unsigned draft, then the testimony of two disinterested witnesses are required to prove the execution and content of the document.


In summary


Quit being a cheapskate and get a will

Don’t let the State of Florida decide who gets what when you die

Keep your original will in a safe place