Does having a valid Will avoid probate in Florida?

As a probate attorney, one common misconception I hear is that dying with a valid last will and testament as a Florida resident means that your assets don’t have to go through probate after you pass away.

However, whether your assets will have to be probated after your death depends more on whether those assets have a surviving co-owner or beneficiary listed on them at the time of your death, rather than whether you died with or without a valid will. A will essentially directs how a probate proceeding should be handled (i.e., who ultimately may receive the assets in your estate, who you’d like the personal representative (executor) to be, what powers the personal representative has, etc.), but dying with a valid will does not in itself determine whether your assets will have to go through probate.

Generally speaking, assets that have a surviving co-owner or beneficiary will likely pass directly to that survivor outside of probate. Whether a probate is needed depends more on whether you own any assets that did not have a surviving co-owner or beneficiary at the time of your death. If so, those assets would likely be subject to probate and your will would then direct how they are distributed in a probate proceeding.

For example, if a person passes away owning a parcel of (non-homestead) Florida real estate in their name alone and a checking account with a “pay-on-death” (POD) beneficiary designation to their surviving adult child, the real estate would be subject to probate, but the checking account would pass directly to the surviving child outside of probate.

Who ultimately gets title to the real estate in this example depends largely on whether the deceased person had a valid will and if creditors of that person’s estate file timely and valid claims in the probate proceeding. If the person passed away without a valid will, Florida’s default intestacy statutes (§§ 732.101-732.111, F.S.) would instead direct how the property is distributed upon their death and how the probate proceeding is handled by the personal representative and probate court. Having a valid will is therefore critical to ensure you can control how your assets are handled after your death, rather than simply relying on the default rules laid down by the Florida legislature.

Dying with or without a valid last will and testament in Florida is therefore not necessarily a determining factor in whether your assets will be subject to probate, but that doesn’t mean having a valid will isn’t important. Even if you currently have a co-owner or beneficiary listed on all your assets, you can’t predict what assets you will own at the time of your death, or which co-owners or beneficiaries will outlive you. Most people would rather not rely on the default intestacy statutes to determine how their property passes upon their death. It’s therefore wise to consult with an experienced estate planning attorney to create a comprehensive strategy for how your assets will be handled upon your death, in probate or otherwise.

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