By: Rebecca L. Nichols, Esq.

Published at

23 October 2023

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Testate vs. Intestate Estates: When There Is a Will, There Is a Way.

Testate means dying with a will and Intestate means dying without a will. In Florida, if a person dies leaving behind a legally binding will they are termed a dying testate. If a person dies without a will, that is, no legal document that states how the deceased's property will be distributed, and what his/her wishes are regarding the distribution of his/her property, such a situation is called a dying intestate.

Key Take-Aways

  1. Dying Testate ( dying with a will) means when the deceased passes leaving a legally binding will behind.
  2. The estate distribution in testate estates takes place per the wishes of the deceased mentioned in the will.
  3. Dying Intestate ( dying without a will ) means when the deceased person passes without a will.
  4. In such cases, the estate is distributed according to the Florida state intestacy laws.
  5. The order of Inheritance in the intestate estate is surviving spouse, descendants, and other relatives.
  6. If no surviving relatives can be found, the estate may escheat (revert) to the state of Florida.

Comprehensive Estate Planning involves making crucial decisions about the distribution of your assets after your death. Two terms that are critical in this process are “testate” and “intestate.” To effectively navigate the legal landscape, let’s break down Testate vs. Intestate, their implications, and general rules.

Testate vs Intestateoften crops up in legal discourse and the media. Each term holds a significant bearing on the legal and financial aspects of life (and death). However, they are typically discussed in niche circles, leaving the average person somewhat in the dark. Through this blog piece, we aim to shed light on these terms, their implications, and why they are a pivotal part of the conversation surrounding estate planning.

Definitions: Terminology Matters

Just as a sturdy foundation paves the way for robust construction, understanding key terms can illuminate the path to complex legal concepts. So, before embarking on the journey to understanding testate and intestate, let’s clarify some terms:

  1. Will: A legal document outlining how an individual—the testator—wants their assets to be distributed after death.
  2. Estate: A collective term that refers to an individual’s assets, including but not limited to property, money, and personal belongings.
  3. Testate: This is the situation when an individual dies, leaving behind a valid will. Dying “testate” means the individual died with a testament in place.
  4. Intestate: The circumstance when a person dies without leaving a valid will, leading to potential complexities in the distribution of their assets
  5. Testor and Testrix: A testator is a person who makes a will outlining the distribution of his or her property upon death. Testatrix refers to a female testator, who has equal rights and responsibilities in making a will.
  6. Executor or Personal Representative: An executor, also known as a personal representative, is a person appointed by a will to manage the deceased's estate, ensuring that the assets are distributed according to the provisions of the will.

What does died Testate vs Intestate mean?

To die testate means that a person has passed away leaving a valid will behind, which includes clear instructions on how their estate should be distributed. Executors are responsible for overseeing the administration of testate estates.

On the other hand, dying intestate refers to a situation where a person dies without a valid will. In such cases, the deceased person’s estate is distributed according to state intestacy laws. The court typically appoints an administrator to manage the distribution of intestate estates.

The main difference between a dying testate and an intestate lies in the presence of a valid will. And the method by which the estate is distributed.

What Our Attorney Says

Dying Testate: Control in Your Hands

A dying testate means an individual has passed away but not without leaving behind a valid will. Their will provides clear instructions on how their estate and, assets should be distributed following their demise.

In the will, the testator usually appoints an executor— a person entrusted with ensuring the stipulations are carried out as planned. Their duty includes distributing items of sentimental value and financial assets to the correct beneficiaries.

The role of an estate planning trust attorney surfaces in situations like these. They offer expert advice to the executor, guiding them through the ins and outs of the probate process—an often complex procedure validating the will. Lawyers specializing in wills and trusts provide assistance that ensures the management and execution of the testator’s last wishes are executed seamlessly.

Dying Intestate: When someone dies without a will

When an individual passes away without leaving a valid will behind, they are said to have died intestate. This situation can weave a web of legal complexities for the surviving family members and loved ones. Especially when it comes to the distribution of assets.

In an intestate situation, statutory-specific intestacy laws provide a legal framework for asset distribution. In Florida, the court appoints an executor or a personal representative, to administer the deceased estate following state laws.

Usually, an appointed administrator is responsible for allocating the assets per the law. Spouses, children, parents, and siblings—those in the direct line of kinship—are the usual beneficiaries.

Lawyers from reputableFlorida Will Trusts and Probate Firmscan help make sense of the complexities navigated by the administrator. They ensure that the distribution of assets meets the legal requirements while balancing the best interests of the beneficiaries. 

As per the Florida Intestacy Law, the Order of succession is given below:

  1. Surviving Spouse: If there are no descendants, the spouse inherits the entire property; Otherwise, the spouse receives a share based on the descendants’ relationship.
  2. Descendants: Descendants inherit the property if no surviving spouse, with priority given to children, grandchildren, and subsequent generations.
  3. Other Relatives: If there is no surviving spouse or descendants, property may pass to parents, siblings, or more distant relatives under Florida law.
  4. Escheat: If no surviving relatives can be found, the estate may escheat (revert) to the state of Florida.

Testate vs. Intestate: A Comprehensive Comparison

The primary difference between a testate and an intestate situation lies in the control over asset distribution. When a person dies testate, their assets are distributed as per their last wishes documented in the will. However, when a person dies intestate, Florida statutes dictate the distribution of assets, per the existing intestate laws.

Each of these scenarios has unique implications for asset distribution. This poses distinct emotional and financial challenges for the family and beneficiaries. The stress of these processes can be eased significantly with the guidance of a skilled Will and Trusts Administration Attorney. Specialized law firms ensure parties’ best interests are upheld during wills, trusts, and probate proceedings.

The below images can help you better understand and compare the basics of Testate vs. Intestate. With this detailed study, one can easily understand why to die testate rather than interstate.

Intestate vs Testate and Florida Succession Laws: 

The turbulent sea of testate and intestate laws is affected by variances in state regulations. Each state can have distinct laws and regulations relating to these situations. Therefore, it’s crucial to remain aware that laws and procedures valid in one state may not apply in another.

Testate Succession and Florida Probate Law:

In Florida, the process of testate succession begins with a valid will, and the terms and conditions in the will are executed as explicitly specified in it. The person writing the will is called the testator, and for the will to be legally valid it must be signed by the testator in the presence of two witnesses. 

Below is a step-by-step breakdown of testate succession in Florida:
  1. Creation of a Valid Will: The process begins when a person, known as the testator, drafts a valid will outlining their wishes for asset distribution upon death.
  2. Execution of the Will: For the will to be legally valid, it must be signed by the testator in the presence of two witnesses to be legally enforceable under Florida law.
  3. Probate Proceedings: Upon the testator's death, the will is submitted to the probate court to determine its validity.
  4. Verification of Validity: The court examines the will to ensure it meets all legal requirements, including proper execution and testamentary capacity.
  5. Appointment of Executor: If the will is deemed valid, the court appoints an executor or a personal representative, to administer the estate.
  6. Asset Distribution: The executor oversees the distribution of assets according to the terms and conditions specified in the will.
  7. Legal Adherence: Throughout the process, Florida probate law ensures that the testator's wishes are executed precisely as per the will.
  8. Closure of Estate: Once all assets are distributed and debts settled, the estate is closed, marking the completion of the testate succession process in Florida.
Suggested Read:  
Roles and Responsibilities of a Florida Personal Representative.

Intestate Succession and Florida Probate Law: 

The intestate succession process in Florida is completely different from that of the testate succession in Florida. Here the will is absent, the court appoints the personal representative, and the estate is distributed per the Florida intestacy laws. Once all assets are distributed and debts are settled, the estate is closed, concluding the intestate succession process under Florida probate law.

Below is a step-by-step breakdown of intestate succession in Florida:
  1. Absence of Will: Intestate succession begins when the deceased left no valid will directing property distribution.
  2. Probate Proceedings: The estate then enters the probate court, where the court oversees the distribution process according to Florida's intestate laws.
  3. Identification of Heirs: The court identifies the deceased's heirs based on family relationships and Florida's intestacy laws.
  4. Asset Distribution: The estate is distributed among the surviving spouse, children, parents, and other relatives according to the statutory order of priority.
  5. Appointment of Personal Representative: The court appoints a personal representative to manage the administration of the estate, which is similar to testate succession.
  6. Legal Adherence:  Throughout the process, Florida probate law ensures estate distribution and adherence to statutory guidelines.
  7. Closure of Estate: Once all assets are distributed and debts are settled, the estate is closed, concluding the intestate succession process under Florida probate law.


The 2023 Florida Statutes in Chapter 732 provide a legal guideline for intestate succession or estate distribution in the absence of a will. They outline how a decedent’s estate is divided among surviving heirs, addressing the spouse’s share, order of inheritance, rights of afterborn heirs and adoptees, and abolishment of dower and curtesy rights. These statutes emphasize the importance of estate planning and highlight the advantages of having a will for better control over asset distribution, reducing potential disputes, and ensuring decedents’ intentions are upheld.

The key points Include:
  1. The Intestate Estate (732.101): If a person dies without a valid will (intestate), any part of their estate not otherwise disposed of will pass to their heirs according to this code.
  2. Spouse’s Share of Intestate Estate (732.102): The spouse’s share of an intestate estate varies – it could be the entire intestate estate if there’s no surviving descendant or half of the estate under certain conditions.
  3. Share of Other Heirs (732.103): This explains in detail the sequence in which other (non-spousal) heirs would inherit a decedent’s intestate estate.
  4. Inheritance Laws for Kindred Relations (732.104 – 732.105): The laws dictate how property is distributed among both whole and half-blood relatives.
  5. Treatment of Afterborn Heirs and Adoption (732.106 – 732.108): Individuals conceived before but born after the death of the decedent have rights to the estate. Adopted individuals are treated as the decedent’s descendants.
  6. Escheat to the State (732.107): If there are no surviving individuals entitled to the decedent’s estate, it shall escheat, or revert, to the state.
  7. Dower and Curtesy (732.111): The statutes reference that Dower and Curtesy’s rights have been abolished. Traditionally, these terms referred to portions of an estate guaranteed to a surviving spouse, often a wife, when the other spouse died.

The Indispensable Legal Counsel in Estate Planning

Having an experienced attorney is invaluable when creating an estate plan or handling an intestate estate. The best Comprehensive Estate Planning attorneys aim to secure your wealth and assets and ensure your wishes regarding your health, family, and legacy are carried out as per your instructions.

 The laws governing the Administration of Trusts in Florida may inherently differ from those in another state. Seeking advice from a knowledgeable estate and trust lawyer in your state can offer the necessary guidance.

A meeting at e-Estates and Trusts, PLLC can be the first step towards securing your future. This meeting enables you to gain a thorough understanding and develop a personalized estate plan to meet your specific requirements.

Testate vs. Intestate DO’s and Donts’:


1.  Consult with a Legal Expert: When preparing a will, consult with a  Florida Probate Attorney and Administration Lawyer to ensure you’re meeting all legal requirements.

2.  Frequently Update Your Will: Make modifications to your will after any significant life change (birth of a child, marriage, divorce, etc.) to keep it aligned with your current circumstances.

3. Keep the Will Safe: Keep the will securely and ensure trusted persons know its location.

4. Appoint a Trusted Executor: Choose someone reliable to carry out your wishes as mentioned in the will.


1. Don’t Ignore Intestacy Laws: If you don’t have a will, understand your local intestacy laws to know how your estate would be distributed.

2. Don’t Overlook Any Asset: All assets, regardless of value, should be included in the will to prevent disagreements.

3. Don’t Have Just One Copy of Your Will: Secure multiple copies to avoid total loss, but ensure all copies are updated when changes occur.

4. Don’t Try to Disinherit a Spouse Without Legal Consultation: Many states have laws that prevent disinheriting a spouse unless specific legal steps are taken.


Worried about what will happen to your estate if you die without a will? We're here to help!

Navigating the seas of estate planning often requires the guidance of Lawyers specializing in wills and trusts. These professionals are well-versed in law, adept at managing complex legal situations, and compassionate in understanding your concerns and preferences.

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Wrapping Up: A Recap & Understanding Implications

Knowing what it means to die testate or intestate can significantly influence one’s estate planning process. A strong grasp of these testate vs. intestate legal principles doesn’t only assist in smarter planning. It also ensures that your loved ones are offered higher security in the face of an unfortunate eventuality.

Ending Notes: Time for Action!

The sands of time stop for no one, and planning for the future can never be done too early. Whether it involves consulting with a legal expert, setting up a meeting with an Estate Planning, Will, and Trust attorney, or learning more about trust administration, now is always the ideal time to start.

Safeguarding your legacy, protecting loved ones, and fulfilling your wishes is a timeless gift you can bestow. Make estate planning a priority. After all, ensuring peace of mind for you and your loved ones is a goal worth pursuing.

Creating a will doesn’t have to be an arduous task. Consulting with a lawyer specializing in wills and trusts can set you on the right path. Estate planning ensures the future security of loved ones by making sound decisions beyond asset distribution.

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