Good morning. My name is ***** ***** I look forward to helping you this morning. Obviously the key is whether or not your your ex-husband actually had a will. If he did, then the terms of the will would control his probate estate
. BUT, If he did not, as Wife #2 suggests, then he will be deemed to have died intestate
and the Florida intestate succession laws will apply which would result in your son being entitled to inherit a portion of your ex-husband's estate. If Wife #2 is in possession of the will, she needs to file the will with the probate court in the county in which your ex resided at his death, usually within 30 days of the date of death. Once it is filed with the court, it becomes public record and you can obtain a copy from the probate records. The will should name an executor who will then need to be officially appointed by the probate court as executor which will then give that person official authorization to administer the estate. Until that time, no one has any authority to do anything with your his probate assets
. Your ex-husband's estate and his assets are not his surviving spouse's personal piggy bank. If she doesn't produce the will and cause it to be filed within 30 days of the date of your ex-husband's death, your son can file his own petition with the court asking the court that he be deemed to have died intestate and that the state's intestate succession rules govern his probate estate. That will force her hand...to either produce a will or live with the Florida intestate succession laws. Under the Florida intestate succession laws, when there is a surviving spouse and children who are not the descendants of the surviving spouse, the probate estate gets distributed as follows: "732.102 Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:1(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.732.103 Share of other heirs
.—The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:(1) To the descendants of the decedent." Certain assets are not considered probate assets and are not governed by either the will or the intestate succession laws. These include: i) joint brokerage and bank accounts which vest automatically in the surviving owner upon the death of one owner; ii) real property held as joint tenants or tenants by the entirety, which also vest automatically in the surviving owner upon the death of one owner; and iii) assets with designated beneficiaries other than the estate such as life insurance and retirement accounts. Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). I thank you in advance for taking the time to provide me a positive rating!