One of the most common misconceptions I run into as an estate planning lawyer is that many people think that if they have a Last Will and Testament in Florida, probate will not be necessary. The reality is that a Will sets forth the deceased person’s wishes–such as designating the beneficiaries and the Personal Representative to oversee the estate. In essence, the Will acts as the “roadmap” for the probate court to follow. But the important thing to understand is that the Will is not self-implementing–it is the power given by the probate court that implements the wishes set forth in the Will.
If a Florida resident owns assets in his or her individual name at the time of death, a determination must be made whether those assets can be transferred or liquidated without court assistance, i.e. without probate. Some assets can be transferred without probate. These would include assets which have a beneficiary or pay-on-death designation (for example, life insurance or an IRA). They also include assets titled jointly “with right of survivorship.” But if an asset is in the decedent’s sole name and if there is no beneficiary or pay-on-death designation, then the disposition of that asset in Florida will require a probate.
In Florida, probate is a court proceeding. To open a probate, a petition is filed with the probate court and the case is assigned to a Judge and is given a case number. There are statutes and procedural rules which govern how the probate is conducted. Probate takes time–often upwards of a year or more–and because you have to hire an attorney, it can be expensive. In addition, going through probate can be both frustrating and stressful to family members already dealing with the loss of a loved one. Most people who have been through probate would agree that if probate can be avoided, that is a good thing.
So having a Will in Florida does not necessarily avoid probate and since it is usually considered desirable to avoid probate, the question becomes: How do I avoid probate in Florida? That is where having an experienced estate planning attorney comes into play.