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Florida Intestacy

Written by on Oct 31, 2008| Posted in: General

 

Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” )

This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative:

“If a man dies without leaving a son, you shall let his heritage pass on to his daughter; if he has no daughter, you shall give his heritage to hi s brothers; if he has no brothers, you shall give his heritage to his father’s brothers; if his father had no brothers, you shall give his heritage to the nearest relative in his clan, who shall take possession of it.” Numbers 27:8-11.

The Bible Speaks

Florida, like about 29 other states, maintains an intestacy law that is almost identical to its Biblical counterpart which preceded it thousands of years earlier. Many legal reformers have recently argued that states should reform their intestacy laws which give inheritance rights to remote descendents who suffer no sense of loss or bereavement at the death of the decedent. These heirs are often referred to as “laughing heirs.” These remote heirs inherit from the estate of their deceased relative, either because no will was drafted or because all heirs taking under the will predeceased the decedent.

The policy behind Florida’s intestacy statute involves a presumption relating to the natural affections between the intestate and his or her family members. Simply stated, the typical family relationship will involve affection by and between its members, and therefore, when a person dies without a will, the law should impose a presumption that the decedent intended for his beloved family members to inherit his or her property.

However, why should the law always presume that the decedent’s intent would be to grant the probate estate to a remote heir? Isn’t the inheritance of the probate estate by remote descendants who feel no remorse for the decedent, highly improper? Doesn’t the Florida intestacy statute provide a windfall for the “laughing heir” who undeservedly inherits the probate estate?

Uniform Probate Code

The Uniform Probate Code was drafted with an intestacy scheme that doesn’t allow laughing heirs to inherit from the relative they barely knew. Under §2-103 of the Uniform Probate Code, only grandparents, aunt, uncles, and first cousins can inherit from the estate, all other remote heirs have absolutely no claim to the probate estate. Under the Uniform Probate Code, if the only living heirs are more remote than the deceased’s grandparents, the intestate estate passes to the state government.

Florida is the Maverick State

Some states have taken a much different approach than that promulgated by the Uniform Probate Code, and have moved in the direction of expanding the pool of potential heirs to include the heirs of a predeceased spouse. Although Florida has adopted significant portions of the Uniform Probate Code, its intestacy law creates inheritance rights for laughing heirs that did not exist even at common law. Florida’s intestacy statute allows the heirs of a decedent’s predeceased spouse to inherit the decedent’s estate. Thus, if a man’s wife predeceased him and he had no heirs upon his death, the property would go to the heirs of the wife before the probate court would allow the estate to go to the Florida state government.

I Don’t Understand?

I’ve asked many people and read quite a bit of literature searching for the policy reasons behind our Tallahassee legislators’ belief that intestate decedents would prefer anyone except the state to inherit their property. As of the writing of this blog, I haven’t discovered any cogent and articulated policy reason. Do heir searchers or heir location firms have anything to do with it?

Who are these heir searchers? They are individuals who review probate records and abandoned property records to find heirs who may have an interest in an estate. These persons are usually not lawyers, and they usually solicit their clients to make the client aware of an abandoned estate. The heir hunter then promises certain things if the client assigns a portion of his inheritance to the probate searcher. The role of the heir hunter is critical to the laughing heir for obvious reasons.

Should our legislature examine the intestacy scheme that rewards laughing heirs? Some legal and other observers note that Florida will be soon hit with a tidal wave of much larger inheritances. See, 12 Quinn.Prob.Law.Jour. 153. This is based on the United States Bureau of Census prediction that the number of elderly will more than double between now and the year 2050! Most of the growth is to occur during 2010 and 2030 when the “baby boomer” enter their later years. Id.

We should seriously consider whether it should be our state’s policy to allow unclaimed estate property to be claimed by laughing heirs through the work of the heir hunters, or whether it is a better policy to have undistributed property, not inherited by laughing heirs, go to the state government?

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