Testate vs. Intestate
The terms testate and intestate refer to the validity of a person’s last will and testament. There are distinct probate procedures for wills deemed testate and intestate, and the court has final say in whether the terms of the will are valid and can be carried out by an executor.
If you die testate, this means that your will explains your final wishes clearly and completely. Courts recognize a testate will as legally binding and see to it that your estate is distributed exactly as you specified.
If you die intestate, on the other hand, there is no valid will for the court to honor. Either no will was submitted to the court, or the version provided was outdated or otherwise unacceptable. If the court decides your will is invalid, it will be discarded. All of your property subject to probate will then be distributed according to state legislation. This process is known as intestate succession.
There is also a third status for wills called partialintestacy. The probate court views a partially intestate will as one that is valid, but the court identifies a problem with some portion of it. The judge may deem the will partially intestate if you forgot to include an asset or if he or she decides the will isn’t legally binding.
The Process for Testate Succession
To ensure that the terms of your last will and testament are fulfilled after your death, you should to keep the document as complete and up-to-date as possible. This also means making sure that your will is signed and witnessed according to state law.
If you're unfamiliar with your state’s legislation for wills and estates, it may be wise to periodically consult an attorney to discuss the legality your will.
If you draft your will correctly and the probate court deems it is valid, your estate will be distributed exactly as you requested through a process called testate succession. If you die testate, you can:
Name a personal representative to carry out your final requests
Name beneficiaries who will inherit your property
Name a legal guardian for your children
Set up a testamentary trust
The legal proceedings for testate succession vary from state to state. If you familiarize yourself with your state’s probate laws, you can state explicitly in your will how the process will occur. You may, for instance, call for simplified informal estate administration rather than formal court-supervised proceedings.
When you pass away, the person you named as a personal representative (known in some states as an executor) will submit your will to the probate court to be approved. After he or she notifies your beneficiaries and creditors and pays off any debts and taxes, the personal representative will distribute your property according to the stipulations in your will.
Testate Succession in Florida
Florida legislation provides strict guidelines for the process of testate succession. Your personal representative, for example, must be:
At least 18 years old
Not a convicted felon
A Florida resident or close relative
Deemed competent for the role by the probate court
If the personal representative you named in your will doesn’t meet these requirements, the court will appoint a replacement.
In probate through formal administration, Florida law requires the personal representative to hire a probate attorney to offer guidance in all aspects of estate administration. The personal representative and attorney can be compensated with estate funds according to the terms of Florida’s probate code.
For more information on testate succession in Florida, see Steps of Formal Administration in Florida.
The Process for Intestate Succession
While intestate succession usually happens when you die without leaving a valid will, several other situations may arise that require your property to be distributed according to state law. Intestacy may occur if you don’t sign your will according to state legislation, or if you choose to revoke or destroy your will during your lifetime.
Even if you die assuming your will is complete and straightforward, this may not necessarily be the case. The probate court reserves the right to deem your will invalid for numerous reasons described in state statutes.
If you die intestate, the legal system takes control of your estate and distributes property according to procedures laid out in state statute. With intestate succession, your property can only be distributed to your relatives, which would exclude any unmarried partners, friends or charities you named as beneficiaries. If you die without having any living relatives, the estate will inherit your estate.
If your will fails to name an inheritor for one or more of your assets, the court may decide that your will is partially intestate. To prevent this from happening, you should ensure that your will contains a residuary clause, which allows you to determine who inherits any property not listed in the will. Partial intestacy may also occur if a beneficiary dies before you, which may void a section of your will.
Intestate Succession in Florida
Florida Statute §732.101 explains how the probate court distributes property when you die without a valid will. While there are various special cases and exceptions, Florida laws of intestate succession generally transfer property, in descending order of priority, to the deceased person’s:
Siblings and their descendants
Paternal and maternal kindred
Kindred means a distant relative. If none of the people listed above are alive when you die, your property will go to the kindred of your deceased spouse. In the rare case that there are no distant relatives to inherit your property, it will be transferred to the state in a process called escheat.
According to the Florida Probate Code, your surviving spouse inherits the entire estate if you have no surviving lineal descendants, that is, children, grandchildren or great grandchildren. If there are surviving descendants, your spouse receives $60,000 of the intestate estate plus half of the balance of the estate. The remaining half is passed on to lineal descendants.
For more information on intestate succession in Florida, see Intestate in Florida.