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Husband left no will in Orlando, Florida.

Orlando, FL |

My husband's stepfather just recently passed and left no will. He had not been in contact with his children for over 20 years (either in jail or living elsewhere). My mother -in-law is worried that one of his sons (drug addict, felon) will try to come around and collect anything that he may think belongs to him. Without a will, is my mother in law the default recipient of all things left in his estate? Thank you!

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Attorney answers 8

Posted

Under Florida law, a surviving spouse is entitled to a certain portion of a deceased spouse's estate. The children of the decedent may also be entitled to part of the estate. Your mother-in-law should contact a Florida probate attorney to find out exactly what her rights/obligations are.
I would be more than happy to answer any questions your mother-in-law related to her particular situation.

Francine R. Martin, Esq.
(321) 610-7419
francine@brevardprobate.com

The information contained in this posting is provided to you “AS IS” and does not constitute legal advice. I am not acting as your attorney. I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this posting and its associated sites. The law changes very rapidly and, accordingly, I do not guarantee that any information on this posting or linked web sites are accurate and up to date. Additionally, the law differs from jurisdiction to jurisdiction, and is subject to interpretation of courts located in each county. Legal advice must be tailored to the specific circumstances of each case and the tools and information provided to you may not be an appropriate fit in your case. Nothing that you read or is provided on this web site should be used as a substitute for the advice of competent legal counsel in your jurisdiction.

Posted

The answer to your question is pretty straight-forward. By that I mean that your question is completely answered by Section 732.102 of the Florida Statutes. Before reciting the terms of that statute, I will make two assumptions. First, I will assume that mother-in-law was married to husband's step-father at the time of his death. Second, I will assume that the long-lost children you refer to (i.e. the drug addict and felon) are his children and not hers. Assuming that both of these assumptions are true, then Florida law provides that your mother-in-law is entitled to one-half of the estate and his children will split the remaining one-half.

Asker

Posted

Your assumptions are correct. We are getting in touch with a probate attorney today. Would a lawyer be able to fight his children trying to claim anything?

Steven H. Kane

Steven H. Kane

Posted

I don't believe that there is anything to fight. The statute is pretty clear. The children are entitled to share in one-half of the estate.

Asker

Posted

Even if it was purchased during the marriage?

Steven H. Kane

Steven H. Kane

Posted

It sounds like you are a bit confused. Please feel free to call my office at 407 661 1177. I will be glad to discuss this with you free of charge.

Posted

Your mother-in-law and her husband probably owned everything, the house, the car, the bank account, as tenants by the entirety. When he died, she survived and still owns everything. If the son comes around, there is nothing for him.

R. Jason de Groot, Esq., 386-337-8239

Posted

I agree with all of the prior responses. As Attorney Degroot astutely pointed out, we do not have enough information from your summary in order to fully answer your question. If all of the assets were joint, they would pass outside probate and a Will would not affect the distribution to the surviving joint tenant. Any assets with a designated beneficiary likewise bypass probate and any Will. The intestate provisions mentioned by the other attorneys apply ONLY to probate assets.

So the FIRST step is to determine the title to the assets. The next step, in the absence of a Will, is to consider the application of the intestate code.

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

Asker

Posted

Interesting that this only applies to PROBATE. I wonder what the difference is between probate assets and regular assets. Thank you for the help, I will continue my research.

James P. Frederick

James P. Frederick

Posted

It makes sense, however, if you consider that the primary purpose of the probate court is to provide for a transfer of title to the decedent's assets. If title has already passed by way of joint ownership or beneficiary designation, there is nothing left for the court to do.

Posted

Assuming his sons were not the sons of your mother-in-law, your mother-in-law would be entitled to one-half of the estate. If the sons are the sons of your mother-in-law, she is entitled to the first $60,000.00 of the estate, plus one-half of the balance of the estate. Additionally, she is entitled to any property that was titled jointly.

Posted

I assume that your mother-in-law was married to him at the time of his death. If he left asets with a named beneficiary, such as a bank account or life insurance, the assets go automatically to the beneficiary. If he owned an asset jointly with someone else, in most cases, the survivor gets it. So we are only talking here about assets in his name alone. Under Florida law, these are divided between his wife and children. It makes no difference whether or not he had any contact with the children. However, if the value is less than $60,000, after expenses, debts, etc., then your mother in law, udner Florida law, is entitled to all of it. She also gets certain other benefits as a widow.

Posted

Do you see how your simple question kicks us lawyers into "if this, then that" mode? It's funny here on Avvo; but it could be a real pain (and expensive) for lawyers to come into court arguing for each's client's interests. The lesson is for you and your husband to be sure to do a little planning so that nobody is posting questions about your estates down the road. Start with a no-fee living will. See below.

An offer and a disclaimer: Offer: Visit www.411LegalDox.com to learn about and to create your own Florida Living Will and to designation your Health Care Surrogate. Direct your family and friends to the site also. There is no fee for Living Will and Health Care Surrogate. These documents speak for us when we are unable to speak for ourselves. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.

Posted

Your question does not provide certain information needed to formulate an exact answer. However, it appears that the estate in Florida would pass by intestacy laws. The children may have a stake in the outcome, even though they have criminal backgrounds. This is unfortunate. I suggest contacting a qualified attorney to assist you with this process.

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