Probate Without a Will in Florida: How Intestate Succession Works

When a Florida resident dies without a valid will, their estate passes through intestate succession—a fixed statutory order set out in Chapter 732 of the Florida Statutes that decides who inherits, and in what shares. Probate without a will still happens; it simply means the law, rather than the deceased, names the heirs. For estates heavy in real property, this distinction matters enormously, because the family home and other Florida land are often the largest assets and the ones most likely to spark disagreement.

I’ve handled a lot of these cases here in Boca Raton, and the same misunderstanding comes up again and again: people assume that “no will” means “the state takes everything.” That almost never happens. What actually happens is more orderly—and sometimes more frustrating—than that.

What “intestate” actually means in Florida

Dying intestate means dying without a legally valid will. A person can also be partially intestate—say, they wrote a will that disposed of their bank accounts but never mentioned a vacant lot they bought years later. The assets the will doesn’t cover pass by intestacy.

Florida’s intestate scheme lives in sections 732.101 through 732.111 of the Florida Statutes. The opening provision, §732.101, states the basic rule: any part of the estate not effectively disposed of by will passes to the deceased person’s heirs as prescribed by statute, and the estate vests in those heirs at the moment of death. That vesting point is more than a technicality. It means the heirs own their interest in the real property immediately, subject to administration—a fact that shapes everything from who can list a house for sale to who is responsible for the property taxes.

Who inherits when there is no will: the order of succession

Florida’s distribution rules turn almost entirely on family structure—specifically, whether there is a surviving spouse and whether the deceased had descendants (children, grandchildren, and so on). Here is the order set by §732.102 (spouse’s share) and §732.103 (everyone else):

• Surviving spouse, no descendants: the spouse takes the entire intestate estate.
• Surviving spouse, and all descendants are shared by both spouses (and the spouse has no other descendants): the spouse again takes the entire estate.
• Surviving spouse, plus descendants of the deceased who are not also descendants of the surviving spouse: the spouse takes one-half, and the descendants split the other half.
• Surviving spouse who has other descendants of their own, even where all of the deceased’s descendants are shared: the spouse takes one-half, the descendants the other half.
• No surviving spouse: the estate goes to the descendants, then—if none—to parents, then siblings, then more remote relatives, in the order §732.103 lays out.

If there is no spouse and no descendants, the estate climbs the family tree: to the deceased’s parents equally (or the survivor of them), then to brothers and sisters and their descendants, then split between the maternal and paternal grandparents’ lines. Only if no heir can be found anywhere on that map does the estate escheat to the State of Florida under §732.107—and in practice that is rare.

How descendants split a share: per stirpes

When property passes to descendants, Florida uses per stirpes distribution (§732.104). The estate divides at the first generation with a living member. Each living child takes a share; the share of a child who died before the decedent passes down to that child’s own descendants by representation. So if a man dies leaving two living daughters and three grandchildren from a son who predeceased him, the estate splits into thirds at the children’s level—each daughter gets a third, and the late son’s third is divided among his three children.

The homestead wrinkle—why Florida real property is different

This is where intestate estates in Florida diverge sharply from the tidy percentages above, and it’s the piece I spend the most time explaining to clients. Florida’s homestead protection, rooted in Article X, Section 4 of the Florida Constitution and implemented through §732.401, governs the deceased’s primary residence—and it overrides the ordinary intestate shares.

If the decedent is survived by a spouse and by descendants, the homestead does not simply split 50/50 like other property. Under the default rule, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants. Since 2010, §732.401 has also given the surviving spouse an alternative: within six months of the decedent’s death, the spouse may elect to take an undivided one-half interest as tenant in common instead of the life estate, with the descendants taking the other half. That election deadline is firm, and choosing wrong can cost a family real money.

A few practical consequences flow from this:

1. Homestead usually passes outside the probate estate. Protected homestead is not a probate asset available to pay most creditors, and it descends to the constitutionally defined heirs even though probate is the forum where title gets confirmed.
2. Selling the house gets complicated. A life-tenant spouse and remainder descendants must generally agree before the home can be sold free and clear, and life-tenant and remaindermen split obligations like taxes, insurance, and upkeep in ways that breed disputes.
3. The protection only attaches to a qualifying homestead. A second home, a rental duplex, or raw acreage is ordinary intestate property and follows the §732.102–.103 shares—not the homestead rules.

For a Boca Raton estate built around a waterfront condo or a single-family home that has appreciated for decades, getting the homestead analysis right is frequently the whole case. The Florida probate process for these estates lives or dies on careful title work.

What probate without a will looks like, step by step

Procedurally, an intestate estate moves through the same court process as a testate one—it just lacks a nominated personal representative. Formal administration under Chapter 733 generally runs like this:

• Petition for administration. An interested person—often the surviving spouse or an adult child—files in the circuit court for the county of residence (Palm Beach County, for Boca Raton estates).
• Appointment of a personal representative. With no will naming an executor, §733.301 sets the priority: the surviving spouse first, then the person selected by a majority in interest of the heirs, then the heir nearest in degree. The court issues Letters of Administration.
• Notice to creditors and a claims period. Known creditors get direct notice; others are reached by publication, with a limited window to file claims under §733.702.
• Marshaling and valuing assets. This includes ordering appraisals on real property—a step that matters doubly in real-property-heavy estates.
• Paying valid debts and expenses, then distributing what remains to the statutory heirs and closing the estate.

Smaller or simpler estates may qualify for summary administration under §735.201—available when the value of the probate estate (less exempt property) is $75,000 or less, or when the decedent has been dead more than two years. Summary administration is faster and cheaper, but it doesn’t appoint a personal representative, which can be awkward when real property needs to be managed or sold.

One point worth underscoring: many of the —locating heirs, valuing illiquid assets, refereeing disagreements among beneficiaries—are amplified, not reduced, when there’s no will to provide instructions.

Common problems unique to intestate estates

Heirs who didn’t expect to inherit (and ones who did)

Because intestacy follows bloodlines, it can produce results the family finds surprising. An estranged adult child still inherits. A long-term unmarried partner inherits nothing—Florida intestacy makes no provision for cohabitants, no matter how long the relationship lasted. Stepchildren who were never adopted are not heirs. These outcomes are not the court being harsh; they’re the statute doing exactly what it says.

Disputes over who serves and who inherits

With no will to contest, fights tend to shift to administration: who should be personal representative, whether a claimed marriage was valid, whether a child was the decedent’s biological or legally adopted descendant. While there’s no will to challenge, the same procedural muscles used to in a testate estate—standing, formal notice, evidentiary hearings—reappear in disputes over heirship and appointment.

Pretermitted and posthumous complications

Florida law also addresses afterborn heirs: a child conceived before the decedent’s death but born afterward inherits as if born during the decedent’s lifetime (§732.106). And the 120-hour survival rule in §732.601 provides that an heir who fails to survive the decedent by 120 hours is treated as having predeceased—a rule that quietly redirects inheritances in tragedies where two family members die close together.

How to avoid intestacy in the first place

The cleanest fix is the obvious one: a valid will, ideally paired with tools that keep real property out of probate altogether. A properly drafted will, a revocable living trust, a Florida enhanced life estate (“lady bird”) deed, or coordinated beneficiary and survivorship designations can each ensure your home and other Florida land pass the way you intend—not the way a statute dictates. For families with property in more than one state, coordinated planning across jurisdictions is essential; firms like regularly handle estates that straddle Florida and New York.

If you’ve lost a loved one who died without a will, or you’re trying to plan so your family never faces intestacy, the worst move is to guess at the rules. A short conversation early can prevent years of conflict over a house. Reach out before you list, transfer, or pay down anything tied to estate real property.

Frequently Asked Questions

Who inherits if you die without a will in Florida?

Florida’s intestate succession statutes (sections 732.101-732.103) decide. A surviving spouse takes the entire estate when there are no descendants, or when all descendants are shared by both spouses and the spouse has no other children. If the deceased left descendants who are not also the spouse’s, the spouse and descendants each take one-half. With no spouse, the estate passes to descendants, then parents, then siblings, and on up the family tree.

Does the State of Florida take your property if you have no will?

Almost never. The estate escheats to Florida under section 732.107 only when no heir can be located anywhere in the statutory order, all the way out to remote relatives. As long as any qualifying relative exists, the property goes to them, not the state.

What happens to the family home in an intestate Florida estate?

Protected homestead follows its own rules under Article X, Section 4 of the Florida Constitution and section 732.401, not the ordinary intestate shares. A surviving 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 tenant in common instead. The homestead typically passes outside the reach of most creditors.

Can an unmarried partner inherit under Florida intestacy?

No. Florida intestate succession recognizes only legal spouses and blood or legally adopted relatives. A long-term unmarried partner, and stepchildren who were never legally adopted, inherit nothing under intestacy. The only way to provide for them is through a will, trust, deed, or beneficiary designation.

Do you still need probate if there is no will?

Usually yes. An intestate estate still goes through probate to confirm heirs, settle debts, and transfer title, especially for real property. Larger estates use formal administration under Chapter 733; smaller estates valued at $75,000 or less (or where the person died more than two years ago) may qualify for the faster summary administration under section 735.201.