Testate & Intestate Issues

According to the Florida Probate Code and laws governing the probate administration processes, testate and intestate matters involve the distribution of a decedent's assets. To understand how the probate processes of testate and intestate differs, you should contact an experienced Gainesville probate attorney at the Law Office of Silverman, Mack & Associates.

Testate & Intestate Issues in Florida

In a broad sense, a decadent with an established will is said to die testate, whereas a decedent who dies without an established will is considered to die intestate. Both terms refer to the ways in which a decedent’s estate is distributed. The process of distributing such estate is a formal process known as testate succession and intestate succession respectively.

Family members of deceased loved ones should be aware that a decedent's existing will does not automatically guarantee that the individual’s estate will be handled according to testate succession processes. The state of Florida does not consider every form of will valid. While a probate lawyer in Gainesville can determine if your deceased loved one’s will is valid, there are common reasons why wills are revoked during the probate process.

In order to qualify for testate succession, a will must be valid according to these general standards:

  • Legally binding
  • Clear and specific
  • Updated according to state validity and expiration requirements

If a decedent's will is declared invalid by the state, it cannot be used. As a result, the decedent's estate will be distributed according to state guidelines.

Partial Intestacy

At times, a decedent may die with partial intestacy. This means that although the decedent's will may be interpreted as valid, there may be issues with certain portions of the document, or specific property may not be considered or addressed in the document. A judge may also consider the will partially intestate if he/she finds that the document is not legally binding or inclusive of all assets. The process of distribution is known as partial intestate succession and varies according to the content and inadequacies of the will.

The Process for Testate Succession

Once a will is determined to be valid, the process for testate succession can begin. If the will is drafted correctly, there is a strong likelihood that the terms and conditions of the document will be executed exactly as specified within the will. Personal representatives (who must be approved by the state according to age, residency status, competency and previous jail time) may be appointed and used to assist with the overall process. Personal representatives help to ensure that the designated beneficiaries will inherit the property, the designated legal guardians of children under the age of 18 will be assigned, and any and all trusts will be established. Although testate is supposed to be simple due to the governing terms of the will, stipulations and contingencies of the state often make it difficult for a will to pass as totally valid. A personal representative is extremely vital during this process.

The Process for Intestate Succession

Meanwhile, the process for intestate succession requires less flexibility and autonomy. The decedent's property must be distributed according to state law. The only people who are eligible to inherit or receive the decedent's assets and property are family members. According to Florida probate law, priority is assigned to familial beneficiaries in the following order:

  • Spouses
  • Descendants
  • Parents
  • Siblings and their descendants
  • Kindred and/or distant relatives (both in the paternal and maternal sides of the family)

If a decedent lacks lineal descendants (such as children, grandchildren, etc.), then the spouse will inherit the entire estate. Further, even if direct descendants do exist, the spouse must inherit up to $60,000 before the direct descendent can receive anything. Lastly, in the event that there are no living relatives to collect the estate, the estate will be given to the state.

The process of intestate succession can be rigid and confusing, so it is best to rely on experienced Gainesville probate lawyers at the Law Office of Silverman, Mack & Associates. As a spouse or descendant of a deceased individual, you are still owed certain rights and privileges that must be considered and protected during the probate process, whether the decedent's has a valid will or not.

Experienced Probate Attorneys in Gainesville, FL

There is no better qualified probate law firm in Gainesville, FL than the Law Office of Silverman, Mack & Associates. Our experienced probate attorneys have many years of experience with Florida probate law and formal processes. Our lawyers can detect errors in wills, ensure that your deceased loved one’s estate goes into the appropriate hands, and assist clients with the overall process of both testate and intestate succession. Even more so, our probate lawyers in Gainesville, FL highly encourage Florida residents to visit our office in order to go over the basics of wills so that drafting your will is easy and binding. Contact our Gainesville probate law firm today for a free initial consultation.