In Florida, when a person dies intestate, i.e. without a Last Will and Testament, Florida’s intestacy statutes govern who will inherit the deceased person’s probate estate. Section 732.101, Fla. Stat. provides that: “Any part of the estate of a decedent not effectively disposed of by Will passes to the decedent’s heirs as prescribed in the following sections of this code.” Section 732. 102 and Section 732.103 then outline what share is received by the decedent’s spouse and by his other heirs. In other words, the intestacy statutes determine who will be beneficiaries of the estate.
So, when a probate is filed, how does the Court determine who are the decedent’s heirs? In most counties, the Probate Court will require that the person petitioning to be appointed as Personal Representative file an Affidavit of Heirs. The purpose of this sworn document is that it provides the information so that the Court can determine the decedent’s heirs.
What does the Affidavit of Heirs include? Most often, the Affidavit will start off with a statement similar to the following:
For purposes of this document, you must list ALL RELATIVES of the decedent, including yourself, if applicable. If the relative was deceased at the time of the decedent’s death, please provide the deceased relative’s name, indicate deceased, and date of death. Answering with n/a, not applicable, or any other such designation is inappropriate for this document. If there is no person in the respective category, please indicate “None.” When appropriate you must indicate if the relationship is that of a half-relative (i.e. half-brother or half-sister).
The Affidavit then goes through various categories of relationships, including spouse, children, parents, siblings and descendants of siblings, grandparents, and aunts and uncles. The last category is for the “kindred of the last deceased spouse.”
Finally, the Affidavit must conclude with the statement “Under penalties of perjury, I declare that I have read the foregoing Affidavit of Heirs and the facts stated therein are true.” In other words, the Affidavit is sworn to as true under penalty of perjury. The Affidavit must then be signed by the affiant in front of a notary.
Please note that just because a person is listed in the Affidavit it does not mean he or she will be entitled to receive any share of the decedent’s estate. The intestacy statute determines who gets what but the Affidavit gives the Court the information needed to determine how to apply the statute. The intestacy statute determines the degree of heir entitled to inherit. For example, is it a spouse, or children, or some other relative? The Affidavit shows the Court what persons are in that category.
An example might help. Consider Fred, a widower, who has no children. He dies and leaves no Will but he does own a house and some bank accounts. When Fred dies, who gets Fred’s estate? In the Affidavit of Heirs filed in Fred’s probate estate, Fred is shown to have no spouse, no children, and his parents are both deceased. However, the Affidavit shows that Fred has a living sister and brother. He also has a deceased brother who had one child (Fred’s nephew). By taking this information from the Affidavit into account, the Court can determine that Fred’s estate goes equally to his sister, his brother, and his nephew. The nephew is included because Florida’s intestacy statutes provide that inheritance is “per stirpes” meaning that each branch or root of a family is to receive.
In the Probate Court of most Florida counties, an intestate estate cannot move forward until the Affidavit of Heirs has been filed. In other words, the petitioner seeking to be appointed as Personal Representative cannot be appointed and the Letters of Administration will not be issued. For this reason, an experienced probate attorney will usually make sure that the Affidavit is completed, executed, and filed at the same time as the Petition for Administration is filed.
