If you are familiar with the stressful 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 probate process upon your passing. While there are ways that might prevent a probate situation, just having a will in place won’t necessarily do the trick.
A will is written document, signed by the decedent and witnesses, that meets the requirements of Florida law. 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) 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 in making sure all outstanding debts and bills owed by the decedent are paid. Once the steps in the probate process are completed, the will is used to determine how the rest is to be distributed and to whom. 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.
Someone who dies without a valid will is “intestate.” 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 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. Florida Law provides an order of priority in determining the recipients of a decedent’s assets in an intestate situation.
Consulting with an estate-planning attorney you trust is the best way to ensure your assets will be properly distributed in the event of your passing. They can also guide you through your options that may result in an avoidance of the stressful probate process. Be sure to keep up with the videos, articles, and blogs on our website to stay informed about all the various aspects of estate planning. Or, contact us at (954) 755-7803 or by clicking here.