Probate in Florida Without a Will:
How a Small Estate Gets Settled

The process for an intestate estate is almost identical to one with a will. The difference is who is at the table. A will names the beneficiaries; the statute names the heirs. Get the heirs wrong and every signature on the petition is the wrong signature, so this is the part I slow down on with every family.

Who Inherits When There Is No Will

Florida works down a list and stops at the first rung with a living person on it.

The surviving spouse (Fla. Stat. § 732.102)

• No descendants: the spouse takes the entire estate.
• Descendants who are all children of both spouses, and the spouse has no other children: the spouse takes the entire estate.
• Descendants from another relationship, on either side: the spouse takes one-half and the descendants take the other half.

Everyone else (Fla. Stat. § 732.103)

Whatever does not go to a spouse passes, in order, to: (1) the decedent’s descendants; (2) if none, the decedent’s father and mother equally, or the survivor of them; (3) if none, brothers and sisters and the descendants of deceased siblings; (4) if none, half to the paternal and half to the maternal grandparents and their lines; (5) if none, the kindred of the last deceased spouse.

Who Can File

A petition for summary administration may be filed by any beneficiary or by the person nominated as personal representative in a will (Fla. Stat. § 735.203). With no will, that means an heir. The petition must be signed by the surviving spouse, if any, and joined or consented to by every heir who is not receiving a full share under the proposed order (Fla. Prob. R. 5.530). One heir can drive the process, but nobody gets cut out, and a missing or unlocatable heir has to be formally served, which turns a simple file into a slower one.

The Affidavit of Heirs

With no will to admit, the court needs sworn proof of who the heirs are. That is the Affidavit of Heirs: a family tree under oath, listing the spouse, every child (including deceased children and their descendants), and, where it matters, parents and siblings, with addresses and dates. Some circuits, the Tenth among them, require it in every probate regardless of whether there is a will. Several use their own county form. This document is where family secrets surface, and it is far better that they surface here than in a title dispute ten years later.

What Else Changes Without a Will

• No Order Admitting Will, and nothing to deposit with the clerk under § 732.901.
• No named personal representative, which in a summary administration does not matter because none is appointed anyway.
• Homestead follows its own rule. If the decedent owned the home and left a spouse, the spouse takes a life estate with the descendants taking the remainder, or may elect an undivided half interest instead (Fla. Stat. § 732.401). That is fixed by law, not by the intestacy list. The house still needs a homestead determination to clear title.
• Minor heirs cannot sign consents or receive money directly. Distribution to a minor usually means a guardianship of the property, which is a scope change from a flat-fee summary administration.

The Process Itself

Everything else runs exactly as it does with a will: eligibility check under § 735.201, the verified petition with its asset schedule and proposed distribution, the circuit’s checklist, consents from the heirs, the Order of Summary Administration, and certified copies to each bank and holder. Most uncontested intestate summary administrations are done in weeks. The flat fee is the same: $1,495 with no real property, $2,495 with.

Related Reading

• What Happens If You Die Without a Will in Florida: the planning side.
• Summary Administration Forms and Checklist: what goes in the petition.
• Florida Summary Administration: The Complete Guide: eligibility and process.
• Summary Administration by County: where it is filed and what each circuit requires.

This article is for general informational purposes and does not constitute legal advice. Eligibility and procedure depend on the specific assets, creditors, and family circumstances. Consult a licensed Florida attorney regarding your situation. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.