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If I Have A Will I Avoid Probate?

Wed, Feb 08, 2017 at 11:13AM

Many people have the misconception that a will avoids probate. This is incorrect. Probate is a court process that is required when a person dies owning assets in the decedent’s own name, and with no beneficiaries to receive the assets. It can be required if the deceased person left a will, and it can be necessary if the deceased did not leave a will. It can be applicable to some of a deceased person’s property, even though it may not apply to other assets.

Thus, whether probate is required depends upon how assets are held. For example, a deceased person could have a bank account payable on death (POD) to the person’s children, a bank account owned jointly (two names with OR between them), and a home in the person’s own name. The account that is POD would not require probate because it passes automatically to the beneficiaries; the other account does not require probate because it is owned jointly, with right of survivorship; the home requires probate because it does not pass automatically.
If a person dies owning the primary residence in the deceased person’s name, and the person’s property will pass to the person’s heirs, an additional step beyond basic probate is required. Homestead (the word does not just refer to the tax exemption) passes in a rather unusual and complex way in Florida. Homestead vests in heirs at law free of the claims of creditors, but a probate court order is required to show how it has passed. Consequently, if there is a home, an additional process is required.

If a person dies owning real property jointly with a spouse or another person (with a right of survivorship) certain documentation must be recorded in the public records of the county so that the title to the property is clear in the records.

Probate administration requires a lawyer. If you believe probate is or might be required, contact us for additional information.

If I Have A Will I Avoid Probate?

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