What is Probate Court and Two Common Misconceptions about Wills
The Probate court process is typically needed when assets are still titled in the name of a deceased person. Often this may occur with financial accounts and homestead real estate property. If a Probate is needed, the Court will appoint someone to manage the estate of the deceased person, the decedent. When you create a Last Will and Testament (“Will”), you have the opportunity to name an administrator of the will. In Florida, this person is known as the personal representative. In other jurisdictions, they may be referred to as the executor or administrator. The personal representative is responsible for obtaining and preserving the estate assets until distribution to the beneficiaries named in the will. This person is given broad authority over the assets of the estate in order to accomplish this duty.
Does having a will avoid automatically Probate court? The answer to this question is no. However, this answer is not common knowledge, as many people believe in the misconception that having a will avoids the Probate process. However, this is untrue in most cases. A will actually acts as a guide for the Probate Court in the administration of the deceased person’s (“decedent”) estate. While a will does not usually avoid the probate process, it can still be a powerful tool, nonetheless. Other powerful tools to avoid the Probate court process include creation of a Revocable Living Trust and Ladybird deeds. Speaking with an experienced estate planning attorney can provide you with important information as you determine your estate planning goals, options to avoid probate, and the distribution of assets.
If there is no will, the probate is considered an intestate probate under the Florida Probate Code, and the default under Florida law will apply. See section 732.101, Florida Statutes (“Intestate estate.— (1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code.”). In an intestate estate, a Personal Representative is nominated by the Probate court. When there is no will naming a personal representative, the court will appoint one based on a list of factors under Florida law. Therefore, naming a personal representative in your will prevents the court choosing one for you or a potential conflict and litigation over the choice if a probate is ever needed for your estate. As mentioned above, there are various tools to avoid probate, and it is important to have the information to make a knowledgeable decision about what plan or strategy is best for you. Additionally, if you choose to use tools to avoid Probate, a will can still be an essential backup and contingency plan in the event an asset is not properly updated as changes occur through our lifetime.
Does a gift in will automatically pass to the person named in the will? The answer to this question is no, which is surprising to many not trained in estate planning. There is a common misconception that if a gift is made in a will, then it will always be distributed to the person named in the will. However, this is untrue in some cases. For example, some bank accounts allow a named beneficiary on an account who will receive the funds left in the account regardless of if a will names someone else when the owner passes away.
– For Example. Aunt Sue is not married and has no children and 5 nephews. In her 2010 will, Aunt Sue decided to split the $50,000.00 she held in a savings account among her 5 nephews. However, in 2019, a year before her death, one of her nephews, Lucky, started to help her extensively with managing her household, healthcare needs, and transportation. Aunt Sue was so grateful that she decided that Lucky should receive the entire amount in her savings account. The next time she went to the bank, she listed Lucky as her beneficiary / payable on death (“POD'”) on her savings account. When Aunt Sue, passed, her four other nephews were shocked to learn that the gift stated in Aunt Sue’s Last Will and Testament would not be made, because the savings account did not pass to her estate. Rather, the savings account was distributed to the name beneficiary on the account, Lucky.
Estate planning law has its own distinctive features that it is important to be aware of. If you are interested in discussing how we can assist you in creating your estate plan to protect yourself and your assets, please visit our website at www.ConsultLawOffice.com or call (407)843-9901 to schedule a consultation to speak with one of our attorneys.
Anderson and Associates, P.A.
225 N. French Ave.
Sanford, FL 32771
Phone: 407-843-9901
Info@ConsultLawOffice.com