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April 05

When a Testate Estate Becomes an Intestate Estate

Written by Thomas Upchurch , , ,

First, there should be an understanding of the difference between a testate and intestate estate. A testate estate is an estate in which the property is disposed of in accordance with a valid Florida Will. A valid Will requires the maker to have testamentary intent, testamentary capacity, executed in accordance with certain formal requirements, signed by its maker, and witnessed before two witnesses. While not required, it is highly recommended that the Will to be self-proved before a notary public. A maker may choose to dispose of his or her property “per stirpes” or “per capita.”

On the other hand, an intestate estate is any part of the estate which is not effectively disposed of by Will and falls under the Florida intestate rules of succession. See §732.101, Fla. Stat. (2013).  A Will contest, the court may determine: 1) the Will is invalid, 2) provision(s) in the Will are invalid or 3) Will is valid.
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