No spouse or kids in Florida? Without a will your estate goes to parents, then siblings, never charity, unless the gift is worded as a percentage.
How do you leave your estate to charity in Florida when you have no spouse and no children? Without a will, section 732.103 sends everything to your parents first, then your siblings, and a charity is never in that list.
Leaving money to charity in a will works best as a percentage of the residuary estate, since nobody knows what an estate is worth on the day they die. Florida's antilapse statute, section 732.603, only saves a lapsed gift for a blood relative descended from a grandparent, so a charity that merges or declines the gift falls out of the plan unless a second charity is named as an alternate.
What happens when a charity inherits an ira is that the charity owes no income tax on the distribution, while an individual owes ordinary income tax on every dollar. The retirement account should go to charity and the house, which already gets a step up in basis, should go to the people in your life. StepUpLaw has the checklist for fixing every beneficiary designation before this becomes a problem.
Transcript
A woman wrote in this week. No spouse, no children, and two wealthy brothers whose kids will be fine without her money. She wants most of it to go to charity, and she does not know how to structure a gift when she has no idea what her estate will be worth on the day she dies.
Three things settle this. The first is what Florida does with your money if you never write a will. That default sends everything to your parents, then to your brothers if your parents are gone, and it never reaches a charity or a friend on its own. The second is how to word a charitable gift so it works no matter what your estate turns out to be worth. The third is which asset to give the charity and which to give the people in your life, because giving the wrong one to the wrong person costs real money in taxes.
Start with the default. Under section 732.103 of the Florida Statutes, if you die without a will, your estate goes to your descendants first. If you have none, it goes to your father and mother. If they are gone, it goes to your brothers and sisters. Charity is not in that list at any step. Your goddaughter is not in that list. Your closest friend of thirty years is not in that list. If you want any of them to have anything, and you want a charity to have the bulk of it, that only happens if you write it down.
Turn to the charitable gift itself. The instinct is to pick a dollar figure, and that is the wrong instinct for a residuary gift to charity, because you do not know what you are worth on the day you die. Use a percentage instead. Fifteen percent to your godson, five percent split between two cousins, the rest to the charity, stated as a percentage of what is left after those specific gifts. It works whether your estate is eight hundred thousand dollars or three million.
There is a trap inside the charitable gift that almost nobody plans for. Florida has an antilapse statute, section 732.603, that saves a gift if the person you named dies before you and leaves descendants of their own. Read it closely and it only covers a devisee who is your grandparent or a descendant of your grandparent, meaning blood relatives. A charity is not a descendant of anyone’s grandparent. If the charity you named merges, dissolves, or simply declines the gift, which happens more often than people expect, that gift fails and falls into your residuary estate or your intestate heirs, not to some other good cause you would have picked. There are two fixes for this. Name a second charity as an alternate in the same clause, or call the charity before you sign anything and ask them directly whether they accept bequests of the kind you are planning, because some charities decline property gifts for accounting or grant-compliance reasons having nothing to do with how much they want your money.
The third piece is which asset goes where, and this is the one that actually moves dollars. Under section 1014 of the Internal Revenue Code, an asset like a brokerage account or your house gets a full basis step-up to fair market value the day you die, so whoever inherits it can sell it with little or no capital gains tax. A retirement account, an IRA or a 401k, does not get that step-up. It is income in respect of a decedent, and whoever cashes it out owes ordinary income tax on every dollar, same as you would have. A charity pays no income tax on that same distribution. So the efficient split is the retirement account to the charity, and the stock or the house, the assets that already get the tax-free step-up, to the individuals in your life. Naming the same charity for fifteen percent of everything instead leaves income tax on the table that a beneficiary designation would have avoided for free.
That beneficiary designation is also the fastest way to move any of this outside of probate entirely. A retirement account, a brokerage account, a bank account, all of them let you name a beneficiary directly, and a valid beneficiary designation controls over anything your will says, no probate required. The mistake we see constantly is a 401k or an IRA still naming the decedent’s own estate as the beneficiary, sometimes because the account was opened decades ago and nobody circled back to it. Naming your estate erases the very benefit a retirement account offers, because the tax code treats an estate as having no designated beneficiary, which under section 401(a)(9) triggers the fast five-year payout instead of a beneficiary’s own stretch, and it drags that account straight into probate anyway. Go back and look at every retirement account, every brokerage account, every bank account you own, and make sure the actual person or charity you want is named there, by name, this week.
One more trap catches someone with no spouse and no children specifically. Florida restricts who can serve as your personal representative if that person does not live in Florida. Under section 733.304, a nonresident can only serve if they are your adopted child or parent, a blood relative, a spouse, sibling, aunt, uncle, niece, or nephew, or married to one of those people. A close friend in another state, the person you would most naturally trust with this, does not qualify on their own. If that is who you want, name a Florida co-personal representative alongside them, or move the whole plan into a revocable trust, because a trustee does not carry that residency restriction the way a probate personal representative does. It is also worth knowing that Florida’s constitutional restriction on who can inherit your homestead, the rule that normally locks the house to a surviving spouse or minor child, does not apply to you at all. Under section 732.4015, that restriction only exists if you are survived by a spouse or a minor child. With neither, you can leave your house to your favorite charity by name and Florida law puts up no fight about it.
Here is what to do this week. Pull up every account with a beneficiary designation and check who is actually named, and fix any of them still pointing at your estate. Call the charity or charities you are considering and ask them, in plain terms, whether they will accept the kind of gift you have in mind. Then get the will or trust written that puts the specific dollar gifts, the percentage to charity, the retirement account earmarked for the charity, the Florida co-personal representative, and the backup charity all in one document, because right now none of that exists anywhere a court will look. That is the kind of drafting we do at the firm, and it is worth getting it in writing before any of those defaults in section 732.103 make the decision for you.
Read the full guide at stepuplaw.com/florida-intestate-succession
Related reading and listening at StepUpLaw
- Florida Beneficiary Designations: They Override Your Will
- What Happens to Your IRA or 401(k) When You Die?
- Florida Personal Representative (Executor): The Guide | Executor of an Estate in Florida, Who Can Serve, Out of State Rules, Personal Representative Fees and Duties
- Episode 5, Lady Bird Deeds, the Medicaid Look Back, and Estate Recovery
- Episode 4, Lady Bird Deed or Living Trust for a Florida Home
- Episode 3, Why a Lady Bird Deed Fails If You Have a Minor Child in Florida
Related guides
- Florida Beneficiary Designations: They Override Your Will
- What Happens to Your IRA or 401(k) When You Die?
- Florida Personal Representative (Executor): The Guide | Executor of an Estate in Florida, Who Can Serve, Out of State Rules, Personal Representative Fees and Duties
Stepping Up is hosted by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. Episodes are general information about Florida law, not legal advice, and listening does not create an attorney-client relationship.
