Florida Probate Statute 733.806: Advancement

A last will and testament allows the testator to dictate what happens to his (or her) property he passes away. In the will the testator leaves instructions as to which of his family members or friends is to get specific parts of his estate. In Florida, if someone dies without leaving a valid will, the decedent would have died intestate. In those instances the decedent’s probate property will be distributed based on Florida’s rules of intestate succession. When this happens, there are rules that apply. To learn more about distribution under the intestacy rules, including the requirements of Florida Statutes, section 733.806- Advancement, contact a skilled Fort Lauderdale intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates. With over 2 decades of experience representing clients in complex estate matters, we have the skill and knowledge to ensure that all of the requirements of the Florida Probate Code are followed and that your interests are protected.

Intestate Succession in Florida

Under Florida law if a decedent does not leave a valid will, then his estate will go to his legal heirs. Generally, a decedent’s next of kin is his or her surviving spouse and children. If the decedent is survived by a spouse and children, but all of the children are children of the surviving spouse, then the spouse inherits 100% of the decedent’s estate. If the decedent is survived by a spouse and children, however, some of the children are not the descendants of the surviving spouse, the surviving spouse will inherit 50% of the decedent’s probate estate and the children will inherit the remaining one-half 50%. If the surviving spouse has children who are not the children of the decedent, the surviving spouse will inherit 50% of the probate estate and the decedent's children will inherit the remaining 50%.

If the decedent is survived by children and no spouse, then the children will inherit 100% of the decedent’s estate. In the absence of a surviving spouse or children, the decedent’s property will go to his (or her) parents, siblings, or grandparents.

As a Fort Lauderdale intestate succession lawyer will explain, under Florida law, friends, organizations, non-blood relatives, and will not be legally entitled to inherit. What this means is that instead of you controlling who gets your property, the State of Florida will decide.

Advancement

An advancement occurs when a family member is given a gift. If the gift giver passes away intestate and the receiver of gift is an heir, then the law considers the gift as an advance on any distribution to which the heir would be entitled. Thus, the amount of the lifetime gift would be subtracted from the amount of the heir’s inheritance. However, under FL. Stat, section 733.806- Advancement, a lifetime gift to an heir is treated as an advancement only if the decedent stated in writing that it should be treated that way, and the heir acknowledged as much in writing.

For purposes of determining the value of the property advanced, the value is determined at the time the heir received the property, or at the time of the death of the decedent, whichever comes first. Another complication would be if the recipient of the property does not survive the decedent. If this happens, the personal representative of the estate will not take the property into account in determining the intestate share to be received by the recipient’s descendants unless the declaration or acknowledgment provides otherwise. For more information about determining the value of property in an estate, contact an experienced intestate succession attorney in Fort Lauderdale.

Avoiding Intestacy Issues

The best way to avoid the myriad of issue that are associated with intestate succession is to create a will. With a will you will make decisions as to how your estate will be distributed. If you want to you can leave property to not only next of kin, but to other family members, friends, and institutions.

Other Considerations

The person responsible for overseeing the distribution of estate assets is the personal representative. Regardless of whether the decedent died testate or intestate, even before asset distribution can occur, there are several steps that must be completed. First, the personal representative must determine what is part of the decedent’s probate estate. This is a critical step because completing an inventory of the estate is necessary for the personal representative to understand the value of the estate.

Once the value of the estate has been determined, the personal representative can pay estate debts. Debts must be paid before assets can be distributed. In other words, only assets that are left in the estate after debts are paid can be distributed.

Related Statutory Provisions

1. Delivery of devises and distributive shares: § 733.801, Fla. Stat.
2. Proceedings for compulsory payment of devises or distributive interest: § 733.802, Fla. Stat.
3. Encumbered property; liability for payment: § 733.803, Fla. Stat.
4. Order in which assets abate: § 733.805, Fla. Stat.
5. Death benefits; disposition of proceeds: § 733.808, Fla. Stat.

FL. Stat, Section 733.806- Advancement

If a person dies intestate, property that the decedent gave during lifetime to an heir is treated as an advancement against the heir’s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir. The property advanced shall be valued at the time the heir came into possession or enjoyment of the property or at the time of the death of the decedent, whichever first occurs. If the recipient of the property does not survive the decedent, the property shall not be taken into account in computing the intestate share to be received by the recipient’s descendants unless the declaration or acknowledgment provides otherwise.

Contact the Law Offices of Stephen Bilkis & Associates
Whether your loved one passed away with or without a will, estate administration can be complex. There are special rules that apply when administering an intestate estate. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience working closely with personal representative and other interested parties in all aspects of estate administration. We can help. If you have questions related to the duties and authority of personal representative, including the requirements of Florida Probate Code, section 733.806- Advancement. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.