A Will still Requires a Florida Probate Process: Florida Estate Planning Attorney Offers Advice
If you are familiar with the stressful Florida probate process, or if you’ve read our overview article about it, you may be expecting an easy solution to avoiding it. The first assumption we typically hear is that having a will is the best way to make sure your assets are going to be easily distributed to your requested beneficiaries without them having to go through the Florida probate process upon your passing. While there are ways you can prevent a Florida probate situation, having a will in place won’t do the trick.
A will is a written document, signed by the decedent and witnesses, that meets the requirements of Florida law to be a will. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets.
The decedent also can designate a personal representative (Florida’s term for an executor of a will) to administer the probate estate. Whether or not probate will be necessary, Florida law requires that anyone who has possession of a will must file it with the local circuit court within 10 days of learning of the death. If a probate court proceeding is necessary, the court will determine whether or not the will is valid.
Probate is necessary for making sure all outstanding debts and bills owed by the decedent (person who passed away) are paid. Once the steps in the probate process are completed, the will is used to determine how the rest of someone's estate and assets are to be distributed, and to whom they will be distributed. So, a valid will is necessary, not to avoid probate, but to guide the court in how to handle your remaining assets according to your wishes after you pass away.
Someone who dies without a valid will is said to have died “intestate.” Dying intestate basically means dying without a will. Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs.
The decedent’s “heirs” are those who are related to the decedent and described in the Florida statute governing the distribution of the probate assets of a decedent who died intestate. If you are the child of the decedent who did not leave a will, you will need to provide the proper documentation to the court to prove you are the rightful heir to the estate. Florida Law provides an order of priority in determining the recipients of a decedent’s assets in an intestate situation.
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