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 order of heirs set by Chapter 732 of the Florida Statutes rather than by the deceased person’s wishes. When there is no valid will, the law decides who inherits, in what shares, and who has priority to serve as the estate’s personal representative. The good news for many Boca Raton families: a modest intestate estate often qualifies for summary administration, the streamlined process that can resolve matters in weeks instead of the better part of a year.

I handle these cases regularly here in Palm Beach County, and the same misunderstanding comes up again and again. People assume that dying without a will means the state takes everything, or that the surviving spouse automatically gets it all. Neither is reliably true. What actually happens is more predictable — and sometimes more surprising — than most families expect.

What “Intestate” Actually Means

A person who dies without a valid will dies intestate. Their property doesn’t vanish, and Florida doesn’t seize it except in genuinely rare cases where no heirs can be found at all. Instead, the estate is distributed according to a statutory formula. Think of intestate succession as the default will the legislature wrote for everyone who never wrote their own.

This default applies only to assets that would have passed through probate in the first place. A life insurance policy with a named beneficiary, a payable-on-death bank account, a retirement account with a designated recipient, or real estate held as joint tenants with right of survivorship — none of those are governed by intestacy. They pass by their own terms, will or no will. Intestate succession steps in only for the probate estate: assets titled in the decedent’s sole name with no beneficiary designation.

The Surviving Spouse’s Share Under Florida Law

Florida Statute 732.102 governs what a surviving spouse inherits, and the answer depends entirely on the family’s structure. This is the part that surprises people, so it’s worth walking through carefully.

• No surviving descendants. If the decedent leaves a spouse but no children or other descendants, the spouse inherits the entire intestate estate.
• Shared children only. If all of the decedent’s surviving descendants are also descendants of the surviving spouse — and the spouse has no other children — the spouse again takes the entire estate.
• Decedent had children from another relationship. If the decedent leaves one or more descendants who are not also descendants of the surviving spouse, the spouse receives one-half of the intestate estate, and the descendants split the rest.
• Spouse had children from another relationship. If all the decedent’s descendants are shared, but the surviving spouse has at least one other descendant who is not the decedent’s child, the spouse takes one-half.

That third scenario is the one that catches blended families off guard. A man who remarries late in life, never updates anything, and dies with adult children from a first marriage will leave his second wife only half of his probate estate — even if they were married for decades. The children from the first marriage take the other half. No will, no flexibility.

When There Is No Surviving Spouse: The Order of Heirs

If the decedent’s share doesn’t pass entirely to a spouse, Florida Statute 732.103 sets out who inherits, in strict order. The estate flows down this list until it finds living takers, and once it does, more distant relatives receive nothing.

1. Descendants. Children first, then grandchildren and beyond by representation (the “per stirpes” branch-by-branch division).
2. Parents. If there are no descendants, the estate goes to the decedent’s mother and father equally, or to whichever survives.
3. Siblings and their descendants. If no parent survives, brothers and sisters — and the children of any deceased sibling — inherit.
4. Grandparents and their descendants. The estate splits between the paternal and maternal lines, reaching grandparents, then aunts, uncles, and cousins.
5. Kindred of a last deceased spouse. In the unusual case where no blood relatives exist, the estate may pass to the family of the decedent’s last deceased spouse, as if that spouse had survived.

Only if absolutely no heir can be located does the property escheat to the State of Florida — and in practice that almost never happens, because the statutory net reaches cousins and beyond.

How “Per Stirpes” Distribution Works

Florida uses per stirpes division for descendants. Say a woman dies with three children, but one predeceased her leaving two kids of his own. The estate divides into three equal branches. The two surviving children each take a full third, and the deceased child’s one-third splits between his two children — a sixth each. The grandchildren step into their late parent’s shoes. This branch-based math trips up families who assume everyone in a generation simply shares equally.

Small Estates and Summary Administration in Boca Raton

Here’s where intestate estates often become manageable. Florida offers a faster, cheaper probate track called summary administration under Chapter 735, and many intestate estates qualify for it.

An estate is eligible for summary administration if either of these is true:

• The value of the probate estate — after subtracting property that is exempt from creditors’ claims, such as the homestead — does not exceed $75,000; or
• The decedent has been dead for more than two years, regardless of the estate’s value (because the two-year window for most creditor claims has closed).

Summary administration skips the appointment of a personal representative and the months-long creditor process that formal administration requires. Instead, the heirs file a petition, and the court enters an order distributing the assets directly. For a Boca Raton family dealing with a parent who passed away with a paid-off condo, a car, and a checking account — and no will — this can mean a resolution in a matter of weeks rather than dragging through a full year of formal probate.

One practical caution: in an intestate summary administration, every heir entitled under the statute must be identified and must either join the petition or be served. If a long-lost half-sibling or a deceased child’s children exist, they have rights, and skipping them invites later challenges. Getting the heir analysis right at the outset is the whole ballgame.

Special Protections That Override the Default Rules

Even without a will, Florida builds in protections that can change the raw distribution. The homestead property a married decedent lived in cannot simply pass under the intestacy formula — the constitution restricts how it descends, generally protecting a surviving spouse and minor children. A surviving spouse and the decedent’s children are also entitled to a family allowance and to certain exempt property (household furnishings up to a statutory cap and two motor vehicles, among other items) that comes off the top before the rest is divided. These protections frequently matter more to a surviving family than the residual intestate split itself.

Who Runs an Intestate Estate?

With no will, there’s no nominated executor. The court appoints a personal representative instead, and Florida law sets the priority: the surviving spouse first, then the person chosen by a majority in interest of the heirs, then the heir nearest in degree. If relatives disagree about who should serve — and in contested families they often do — the dispute can stall the estate. That is one of several reasons intestacy so often turns into when heirs can’t agree on control or shares.

How Florida Compares to Other States

Intestacy rules are state-specific, and the differences are real. The spousal share, the treatment of stepchildren, and the procedural tracks all vary from one jurisdiction to the next. If you’re comparing how this works elsewhere — say you have family or property up north — it’s worth understanding that other states slice the estate differently and offer than Florida does. Estates with assets in more than one state can require ancillary probate, which adds a layer that a good plan would have avoided entirely.

The Real Lesson: Intestacy Is a Plan You Didn’t Choose

Intestate succession isn’t chaos — it’s a rigid, impersonal plan written for the average person, applied to your specific family whether or not it fits. It ignores the friend you wanted to remember, the charity you supported, the child you wanted to protect, and the in-law you’d never have left a dime. A short, valid will or a basic estate plan replaces all of it with your own decisions.

If you’re facing the probate of a loved one’s estate with no will, or you simply want to make sure your own family never has to navigate intestacy, talk to a probate attorney who handles these matters every day. Our firm guides Boca Raton and Palm Beach County families through — including summary administration for qualifying small estates — and helps you put a real plan in place. You can review our approach to wills and estate planning or reach out directly to discuss your situation.

Frequently Asked Questions

Does the surviving spouse get everything if there is no will in Florida?

Not always. Under Florida Statute 732.102, a surviving spouse inherits the entire intestate estate only when there are no descendants, or when all of the decedent’s descendants are also the spouse’s and the spouse has no other children. If either spouse had children from another relationship, the surviving spouse receives one-half of the estate and the descendants share the rest.

What happens if someone dies in Florida with no will and no close family?

Florida Statute 732.103 sends the estate down a list of heirs: descendants, then parents, then siblings and their children, then grandparents and their descendants (aunts, uncles, cousins). The net is wide, so escheat to the state — where Florida actually takes the property — is rare and happens only when no heir at all can be located.

Can a small intestate estate avoid full probate?

Often, yes. An estate qualifies for Florida’s summary administration if the probate assets (after subtracting exempt property like homestead) do not exceed $75,000, or if the decedent has been deceased for more than two years. Summary administration skips the personal representative appointment and the long creditor process, resolving qualifying estates much faster.

How are children's shares divided when there is no will?

Florida distributes to descendants per stirpes, meaning by branch. The estate splits equally among the decedent’s children; if a child died before the parent, that child’s share passes to their own children. So grandchildren inherit their deceased parent’s portion rather than everyone in a generation simply splitting equally.

Who becomes the personal representative when there is no will?

The court appoints one. Florida gives first priority to the surviving spouse, then to the person selected by a majority in interest of the heirs, then to the heir nearest in degree of relationship. Disputes over who serves are common in intestate estates and can delay administration, which is one reason a will naming an executor is valuable.