Determination of Heirs in Florida
Fla. Stat. § 733.105; Fla. Prob. R. 5.385
When a Florida resident dies without a will — or the family tree is unclear, disputed, or incomplete — Florida probate identifies the legal heirs through a court determination of heirs, not through the "affidavit of heirship" used in some other states. The proceeding establishes who inherits under Florida's intestacy statutes, and in what shares, with an order that clears title.
What it is
A determination of heirs (formally, a determination of beneficiaries) is the judicial process by which a Florida probate court decides who is entitled to an intestate decedent's property. It is governed by Fla. Stat. § 733.105 and Florida Probate Rule 5.385, and it applies Florida's intestate succession rules — surviving spouse first, then descendants, then parents, then siblings and more remote kindred — to the actual facts of the decedent's family.
A note on terminology, because it matters: many people search for an "affidavit of heirship attorney" — a phrase borrowed from Texas and a handful of other states where a recorded affidavit of heirship can pass real-estate title outside of probate. Florida has no equivalent title-transfer affidavit. Florida's Affidavit of Heirs is a sworn family-history statement filed with the probate court to support the petition — it informs the court about the family tree, but it does not itself transfer anything. In Florida, only a court order determines heirship and clears title.
A determination of heirs becomes necessary whenever the identity or shares of the heirs are not obvious: non-marital children asserting inheritance rights, half-blood and whole-blood share questions, heirs who predeceased the decedent (triggering per stirpes distribution to their descendants), heirs who cannot be located, family members estranged for decades, or an old, never-probated estate that is now clouding the title to Florida real estate.
Procedurally, the determination usually happens inside a Formal Administration (or, for smaller and older estates, a Summary Administration). The petitioner presents the family history under oath, serves formal notice on everyone whose interest could be affected, and — where heirs are unknown or unlocatable — the court can appoint an administrator ad litem to represent their interests. The resulting order adjudicates the beneficiaries and their shares, and a certified copy recorded in the county where real property sits operates as evidence of title.
When a Determination of Heirs Is Needed
A Florida determination of heirs is typically required in one or more of these situations:
- The decedent died intestate (no valid will) and the identity of the heirs is uncertain, disputed, or undocumented.
- A non-marital child asserts inheritance rights under Fla. Stat. § 732.108(2), which requires proof of paternity — an adjudication before or after the father's death, the father's written acknowledgment, or a subsequent marriage of the parents.
- Half-blood relatives are among the collateral heirs, raising the half-share rule of Fla. Stat. § 732.105.
- An heir predeceased the decedent, and that heir's descendants take per stirpes under Fla. Stat. § 732.104 — multiplying the number of interested persons.
- One or more heirs are missing or unknown — requiring a diligent search, notice by publication, and often an administrator ad litem under Fla. Prob. R. 5.120.
- Real estate title is clouded by an old, unprobated estate, and a title insurer requires a court order identifying the heirs before it will insure a sale or refinance.
If no qualifying heir can be established at all, the estate escheats to the State of Florida under Fla. Stat. § 732.107 — but Florida law looks deep into the family tree first, and genuine escheat is rare.
Florida Determination of Heirs vs. Out-of-State "Affidavit of Heirship"
| Aspect | Determination of Heirs in Florida | Affidavit of Heirship (other states) |
|---|---|---|
| Legal effect | Court order adjudicating the heirs and their shares | Recorded sworn statement; creates a presumption at most |
| Who decides | A circuit judge, after notice to interested persons | The affiant — subject to later challenge |
| Available in Florida | Yes — this is the Florida procedure | No — Florida does not recognize it as a title-transfer device |
| Contested heirship | Resolves disputes with due process and evidence | Cannot resolve a dispute |
| Title marketability | Certified order is recordable evidence of title | Acceptance varies by state, insurer, and facts |
How a Determination of Heirs Proceeds
The work divides into evidence-gathering and court process. Straightforward family trees resolve within the normal probate timeline; matters with missing heirs, paternity questions, or genealogical research run longer.
- Step 1: Assemble the family history — death certificates, marriage and birth records, divorce judgments, obituaries, and the sworn Affidavit of Heirs from a family member with direct knowledge.
- Step 2: Open the probate and file the petition to determine beneficiaries under Fla. Prob. R. 5.385, describing each potential heir and the basis for their claimed share.
- Step 3: Serve formal notice on every reasonably ascertainable person who could claim an interest. For unknown or unlocatable heirs, publish notice and seek appointment of an administrator ad litem to represent their interests.
- Step 4: Present the evidence — documentary genealogy, testimony, and in paternity cases sometimes DNA evidence — supporting the proposed heirship determination.
- Step 5: If a claimant contests, the court hears the dispute; most uncontested determinations are decided on the papers.
- Step 6: The court enters the order determining beneficiaries. Record a certified copy in each county where the decedent owned real property to clear title.
Is an attorney required?
Yes, in nearly every case. Determinations of heirs almost always arise inside a Formal Administration, where Fla. Prob. R. 5.030 requires the Personal Representative to be represented by a Florida attorney. Beyond the rule, heirship determinations are evidentiary proceedings: the paternity provisions of § 732.108, the half-blood rule of § 732.105, per stirpes computation, and the notice requirements for unknown heirs each carry traps that can invalidate the determination — and cloud the title it was supposed to clear — if handled loosely.
Frequently Asked Questions
Does Florida recognize an affidavit of heirship?
Not as a title-transfer device. In states like Texas, a recorded affidavit of heirship can move real-estate title outside probate. Florida law has no equivalent. Florida's Affidavit of Heirs is a sworn family-history form filed with the probate court as supporting evidence — the actual determination of who inherits is made by court order under Fla. Stat. § 733.105 and Fla. Prob. R. 5.385.
What is Florida's Affidavit of Heirs?
A sworn statement — typically from a family member with personal knowledge — setting out the decedent's marriages, children, parents, siblings, and other relatives, with dates and supporting details. Florida courts use it in intestate administrations to establish the family tree. It supports the heirship determination; it does not replace it.
How does a non-marital child establish inheritance rights in Florida?
Under Fla. Stat. § 732.108(2), a non-marital child inherits from the father if (a) the parents participated in a marriage ceremony (even one later found invalid), (b) paternity was adjudicated before or after the father's death, or (c) the father acknowledged paternity in writing. Paternity adjudicated after death is decided in the probate proceeding itself, and DNA evidence is frequently part of the record.
What happens if an heir cannot be located?
The petitioner must make a diligent search — records searches, last-known addresses, family inquiry, and often a professional heir-search firm. Unlocatable heirs receive notice by publication, and the court may appoint an administrator ad litem under Fla. Prob. R. 5.120 to protect their interests. If a determined share still goes unclaimed, the funds are deposited with the court registry under Fla. Stat. § 733.816 rather than redistributed.
Do half-siblings inherit the same share as full siblings?
No. When collateral relatives inherit, Fla. Stat. § 732.105 gives half-blood relatives half the share of whole-blood relatives. Applying the rule correctly across a large sibling group is one of the recurring computation issues in heirship determinations.
Can the heirs sell inherited Florida real estate before the determination?
Practically, no. A buyer's title insurer will require record evidence of who owns the property. Until an order determining heirs (or an equivalent probate order) is entered and recorded, deeds signed by presumed heirs leave a gap in the chain of title that most insurers will not accept.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
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