Probate Without a Will in Florida: How Intestate Succession Works

When a Florida resident dies without a valid will, the estate passes through intestate succession — a default set of inheritance rules written into Chapter 732 of the Florida Statutes. Instead of the deceased person choosing who receives the house, the bank accounts, and everything else, the law makes that choice for them based on a fixed order of relatives. Probate still happens; the court simply follows the statute rather than a will.

That distinction matters more in South Florida than almost anywhere else, because so many estates here are anchored by real property — a Miami-Dade condo, a Broward single-family home, a Palm Beach investment duplex. When the largest asset is a piece of land, the question of who inherits it (and who can sell it) gets complicated fast. This guide walks through how Florida decides, step by step.

What “dying intestate” actually means in Florida

“Intestate” simply means dying without a will, or with a will the court rejects as invalid. It happens far more often than people expect. Sometimes there was never a will. Sometimes the will exists but was never signed in front of two witnesses as Florida Statute 732.502 requires. Sometimes a homemade or out-of-state document fails on a technicality. In each case, the result is the same: the estate is distributed under the intestacy statutes, and the decedent’s actual wishes — even if everyone in the family knew them — carry no legal weight.

An estate can also be partially intestate. If a will gives away the house but says nothing about a brokerage account that was opened later, the unaddressed asset falls back into intestate succession. Both situations route through Florida probate.

What intestacy does and does not control

This is the single most misunderstood point I see with families. Intestate succession only governs assets that pass through probate. A large share of a typical estate often passes around it, by operation of law, regardless of whether there was a will:

• Jointly titled real estate with right of survivorship, or property held as tenants by the entireties between spouses, passes automatically to the survivor.
• Payable-on-death and transfer-on-death accounts go to the named beneficiary.
• Life insurance and retirement accounts (IRAs, 401(k)s) follow their beneficiary designations.
• Assets in a living trust are governed by the trust, not the intestacy statute.

So before anyone panics about “who gets the house,” the first job is figuring out how the property was actually titled. A home owned solely in the decedent’s name is a probate asset and is governed by intestacy. A home the couple owned together as tenants by the entireties usually never enters probate at all.

Florida’s order of intestate succession

The heart of intestacy is the “share and per stirpes” structure in Florida Statutes 732.102 and 732.103. The outcome depends almost entirely on two facts: whether the decedent left a surviving spouse, and whether there are descendants (children, grandchildren, and so on).

If there is a surviving spouse

Under Florida Statute 732.102, the spouse’s share works like this:

1. No descendants: the surviving spouse inherits the entire intestate estate.
2. All descendants are shared by both spouses, and the surviving spouse has no other children: the surviving spouse again takes the entire estate.
3. The decedent had descendants who are not also the surviving spouse’s children (a blended family): the surviving spouse receives one-half, and the descendants split the other half.
4. All descendants are shared, but the surviving spouse has at least one other descendant from another relationship: the surviving spouse takes one-half, and the decedent’s descendants take the other half.

Blended families are where intestacy most often surprises people. A second spouse who assumed she would inherit the marital home outright may find she shares it with stepchildren she barely knows.

If there is no surviving spouse

Florida Statute 732.103 sets the line of succession when there is no spouse, in this order:

1. To the descendants of the decedent (children, then grandchildren, per stirpes).
2. If none, to the decedent’s parents equally, or to the survivor of them.
3. If none, to the decedent’s brothers and sisters and the descendants of any deceased siblings.
4. If none, the estate splits between the paternal and maternal sides — grandparents, then aunts, uncles, and cousins.
5. As a final fallback, to the family of the decedent’s last deceased spouse.

“Per stirpes” means a deceased child’s share drops down to that child’s own children. If a decedent had three kids and one predeceased him leaving two children, those two grandchildren split their late parent’s one-third.

The homestead wrinkle that drives South Florida estates

Here is where probate without a will gets genuinely tricky in our market. Florida’s homestead protections, rooted in Article X, Section 4 of the Florida Constitution, can override the ordinary intestacy shares for the primary residence.

When the decedent is survived by a spouse and descendants, the homestead does not simply get split like other assets. Under Florida Statute 732.401, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants — or, the spouse may elect within six months to take an undivided one-half interest as a tenant in common instead. That election decision carries large practical and tax consequences, and the clock is short.

Homestead also affects who can force a sale. A life tenant generally cannot sell the property free and clear without the remaindermen’s cooperation, which is exactly how heirs end up locked in a stalemate over a house nobody can agree to sell. For real-property-heavy estates, the homestead analysis is often the whole ballgame. These are the very issues that make probate contentious even when no one disputes the family tree — a theme covered well in this discussion of the .

What the intestate probate process looks like

Procedurally, intestate probate tracks ordinary Florida probate, with a few twists because there is no will and no named personal representative.

• Petition for administration. An interested party files in the circuit court of the county where the decedent lived. Most home-anchored estates qualify for formal administration; smaller ones may use summary administration when the estate is under $75,000 or the death occurred more than two years ago.
• Appointing a personal representative. With no will naming one, Florida Statute 733.301 sets priority: the surviving spouse first, then the person chosen by a majority of the heirs, then the heir nearest in degree. The PR must generally be a Florida resident or a close relative, and the court issues Letters of Administration.
• Identifying heirs. The PR and attorney must establish exactly who the legal heirs are — sometimes requiring affidavits of heirship, especially in blended or estranged families.
• Inventory and creditor notice. The PR inventories assets, publishes a notice to creditors, and works through the claims period under Florida Statute 733.702.
• Distribution. After debts, taxes, and costs are paid, the remaining assets pass to the heirs in their statutory shares, and the estate closes.

Disputes are common when there is no will. Heirs argue over who should serve as PR, whether a missing will existed, or whether a late-surfacing document is genuine. Those fights resemble will contests in mechanics even when no will is on file; the procedural backbone is the same one described in this overview of . If you are facing a Florida estate dispute, our handle these matters daily.

How to avoid intestacy in the first place

None of this is inevitable. A properly executed will, a revocable living trust, correct property titling, and current beneficiary designations let you decide who inherits — and often keep the home out of probate entirely. For South Florida owners with significant real estate, coordinating the deed, the homestead status, and an estate plan is the difference between a clean transfer and years of litigation. You can start by reviewing our guidance on drafting a valid Florida will or our overview of the Florida probate process, and reach out through our contact page for a case-specific review.

The bottom line

Probate without a will in Florida is not lawless — it is governed by a precise statutory order that prioritizes spouses and descendants, layered with powerful homestead protections that can reshape who controls the family home. The system works, but it works on the legislature’s terms, not yours. If you want a say in who inherits your South Florida property, the only reliable answer is a current, properly executed estate plan.

Frequently Asked Questions

Who inherits if someone dies without a will in Florida?

Under Florida’s intestate succession statutes (Fla. Stat. 732.102 and 732.103), the estate passes first to the surviving spouse and descendants. The spouse takes everything if all children are shared and neither spouse has children from another relationship; in blended families the spouse and the decedent’s descendants each take half. With no spouse, the estate goes to descendants, then parents, then siblings, then more distant relatives.

Does the surviving spouse automatically get the house in Florida?

Not always. If the decedent is survived by both a spouse and descendants, Florida’s homestead law (Fla. Stat. 732.401) gives the spouse a life estate with a remainder to the descendants, unless the spouse elects within six months to take an undivided one-half interest as a tenant in common. Jointly titled property or property held as tenants by the entireties passes to the survivor automatically.

Is probate required if there is no will in Florida?

Yes, if the decedent owned probate assets in their sole name. Intestate succession only governs assets that pass through probate; jointly owned property, payable-on-death accounts, life insurance, and trust assets pass outside of probate by operation of law and are not affected by intestacy.

Who becomes the personal representative when there is no will?

Florida Statute 733.301 sets the priority: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree of relationship. The personal representative must generally be a Florida resident or a close relative and is appointed by the court through Letters of Administration.

How can I keep my Florida estate out of intestate succession?

Execute a valid will signed before two witnesses, or create a revocable living trust, and keep your property titling and beneficiary designations current. Coordinating the deed and homestead status with an estate plan is especially important for South Florida real estate, where an unplanned home transfer can trigger years of litigation among heirs.