Searching For Heirs? Look No Further Than the Grandparents

We tend to think of heirs as being our family, both immediate and extended. But when it comes to Florida probate law, they’re not. Which means if you don’t make a will, or if you lose your will, or if no one can find your will after you die, then the State of Florida might get your estate. All of it.

On September 30, 2023, the entire estate of the late Kyle William Bruening passed to the State of Florida because he died without a will, spouse, descendant, parent, sibling, grandparent, aunt, uncle, or first cousin. He had second cousins, who filed for probate claiming to be his beneficiaries, but that relationship wasn’t close enough…wasn’t good enough. All of his probate assets escheated to the State of Florida.

“Where a decedent was never married, heirs are limited to the decedent’s descendants; parents; siblings and, if they are deceased, their descendants; grandparents; and aunts and uncles and, if they are deceased, their descendants.”

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

The court based its ruling on Florida Statutes Section 732.103 which sets forth the order of inheritance when a Florida resident dies without a valid will. The court interpreted the statute to exclude those family members whose closest relationship is through a great-grandparent.

“Pursuant to section 732.103’s plain language, persons who have great-grandparents in common with a decedent but who otherwise have no familial relationship with a decedent are not in a class of persons recognized as heirs of an intestate decedent’s estate.” 

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

This case reminds us of the need to do several things while we are living:

• Don’t assume that the loved ones you name in your will are going to survive you. Specify in your will what happens if they predecease you. Who will get their share?
• Name final takers in your will. If all of the family members you name in your will predecease you, who do you want to get your estate? Is it a person or a charity? Remember that it could escheat to the State of Florida if you skip this step.
• Safeguard the signed original of your will. Copies generally don’t count in probate. The original needs to be filed with the Clerk of Court within ten days after date of death, so keep it in a safe place, such as a bank safe deposit box. 

And remember, if you die without a valid will, your probate estate will pass as an intestate estate under Florida Statutes Section 732.103, like it or not. You might not like that thought. But the State might like it. A lot.