A will is the most common method for estate disbursement. In Florida, any person making a will, known as the testator, must be at least 18 years old and "of sound mind," which means mentally competent. The document must be in writing and contain the signature of the testator. The will signing must take place in the presence of two witnesses and these witnesses must also sign the document, affirming the testator's identity, competence and making of the will voluntarily and free from duress.
Property Not Transferable by Will or Intestate Succession
Certain property in a decedent's estate cannot pass by will or intestate succession. For example, if the decedent owned any property as a joint tenant with at least one other person, the surviving joint tenant automatically inherits the decedent's share through the right of survivorship. Additionally, any property that has a "beneficiary designation," meaning the person eligible to inherit was already named, will automatically pass to that named beneficiary. Such property includes life insurance policies and assets in trust.
A surviving spouse has several exclusive rights to a decedent's estate. In Florida, this includes "exempt property." Exempt property consists of two of the decedent's motor vehicles and $20,000 worth of household appliances, furnishings and furniture. The surviving spouse must file a petition requesting exempt property no more than four months after the estate is submitted for probate.
Florida provides for a "family allowance." This allowance is designed to provide financial support to the surviving spouse and minor children while the estate is being probated. The law provides for a maximum award of $18,000, which is paid out of the estate's assets in a lump sum or installment payments.
Right of Election
A surviving spouse is always entitled to inherit from a decedent's estate. If she is left out of a will, she can seek her "elective share" in accordance with Florida law. The right of election must be submitted either six months after the decedent's will is submitted for probate or two years after the date of death, whichever comes first. The spouse's elective share is 30 percent of the total value of the estate and awarded before all other bequests in a will.
Intestate succession is the statutory procedure used to disburse an estate when a decedent dies without a will. In Florida, a surviving spouse is the first heir entitled to inherit. If the decedent is not also survived by children, the spouse inherits the entire estate. If there are children to inherit, the surviving spouse will inherit half of the estate and the children will inherit equal shares of the remaining half of the estate. If the decedent does not have a spouse or children, more distant relatives will inherit in the following order: parents, siblings, aunts and uncles and nieces and nephews.