In simplified terms, probate is the court supervised process that resolves any debts that the decedent might have and distributes the assets to the named beneficiaries or rightful heirs. The Florida probate court is guided by the Florida Probate Rules and Florida Probate code, found in chapters 731 through 735 of the Florida Statutes. Probate is necessary when a decedent has failed to create a will or has left assets in their individual name for disposition solely through their will.
Yes, you can avoid probate if you don’t have a will. In fact if you’re only using a will to dispose of your assets you are guaranteed to go into probate. If you don’t have a will and you don’t have any “will substitutes” then you also will end up in probate.
In that case, Florida law will decide where your property goes instead of you deciding in a will, so one way that you can avoid going through probate to distribute your assets is through coownership of accounts. If you have ownership with your spouse as tenants by the entireties or with someone else as joint tenants with rights of survivorship, then upon your death that asset will pass to the survivor of the two of you.
Another way to avoid probate is by using a beneficiary designation. With bank accounts, you can fill out a form called “pay on death” (aka POD) and with investments accounts, you can fill out a form called “transfer on death” (aka TOD). Another way that you can avoid probate and avoid using a will is by trust ownership. If you can move the asset into the trust (called “funding the trust”) then that is a probative avoidance tool.
Keep in mind that if you die with anything in your individual name or inherit anything after your death, then probate is absolutely necessary and you will need a will to make sure that your assets are distributed the way you intend.
Some of the assets that you might not be thinking about are a wrongful death action or personal injury settlement you’d need a personal representative to represent your family. Any monetary recovery that is held or paid in your name must go through probate.
If there is a homeowner’s insurance claim because a hurricane came through (we’ve seen this a lot where somebody dies and then there’s a claim filed while the family is living there), the settlement check is going cut to the deceased person.
That means the money is going to go through probate to end up in the right hands. If you inherit from someone in your family after your death because they could have left a will naming you as a beneficiary, then your family has to file probate to inherit that interest.
If your family found an old paycheck that was that was made out to you and they didn’t deposit it before you died or if there’s a new check that was issued because you were working during the last two weeks before you died (think business profits or distributions), that money will go through probate. You also may want to transfer any of your personal property as well families often fight about the smallest of things for sentimental reasons.
If you won the lottery the night before you died, that money is going through a probate, so you better have a will! Also, you need to name guardians for your children and that is most often done through your will, which requires probate court involvement.
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