Wills and Probate

A will is a formal document that directs how a person’s assets will be distributed after death. Probate is the court process of administering a person’s assets (the “estate”) according to the will. A will appoints someone to gather and distribute assets (the “personal representative”), defines who will receive the assets (the “beneficiaries”), and directs how the process will proceed. The process begins after the will has been “admitted to probate” and is supervised by the Probate Court. Many people ask, “do I need a will?” If a person owns assets in his or her name alone and dies without a will (dies “intestate”), state statutes provide how the person’s assets will be distributed. In general, Florida statutes distribute assets according to blood relations, and not necessarily in the order you would choose. 

In today’s world, intestate distribution can be complicated if the deceased person (the “decedent”) is or was married, has or had children, or has a business. It can also be complicated if any of the decedent’s spouse(s), children, parents, or siblings have died or if the decedent has or had stepchildren. It is important to know that intestate distribution is not automatic. It requires court intervention, can result in challenges and litigation, and can be expensive. If a Florida resident dies with only limited assets, the estate may be eligible for a simplified court proceeding (“summary administration”) or even no administration. However, making use of the summary administration or no administration procedures usually requires the advice or assistance of a lawyer. Only you can decide whether the cost and difficulty of distributing assets through intestate procedures is better than the cost of preparing a will. It is relatively inexpensive to prepare a simple will and often advisable, even if you believe you “have nothing” or you put your assets in someone else’s name.

“Avoid Probate”

Some people prefer to “avoid probate” (i.e., distribute assets after death without using the court process). One method of doing this is to put all assets in joint names, in another person’s name, or by naming a beneficiary on every asset. This can be effective if you are very careful to “title” all your assets, every single one, in a specific legal way. However, this process requires precise consistency. Even professionals such as bank officers, real estate agents, and title insurance agents often misunderstand the specific meaning of title and beneficiary conventions, and human beings can make mistakes when preparing documents. Life does not hold still and assets are almost always changing in some way. In addition, putting your assets in someone else’s name can have unintended consequences. 

 For example, putting a bank account in your name and the name of a joint owner will usually prevent anyone else from sharing in the account after your death. Creating a living trust is another way to distribute assets after death without probating a will in court. It can be very effective, but it, too, requires creating the document and titling all assets in the name of the trust. There are many benefits to using a living trust for this purpose and some risks. Talk to a qualified attorney about using asset titles or a living trust to avoid probate. Whether or not they use asset titles or a living trust to avoid probate, trust and estate lawyers usually include a will with estate plans. This is a good idea “just in case” something arises outside the estate plan.