Does a Will Avoid Probate in Florida?
Many people sign a Last Will and Testament to save their loved ones the trouble of opening a probate estate. Does a Last Will and Testament avoid probate?
A Last Will and Testament does not, by default, avoid probate.
A Last Will and Testament provides written instructions for how a person wishes his or her property to be distributed at death and who he or she wishes to oversee the distribution of the property. The Will is like a road map for a Florida probate court to follow. A Will is not self-implementing. The probate court holds the power to implement the wishes designated in the Will.
Whether a will avoids probate generally depends on what kind of assets the decedent owned at death.
When someone dies, their assets can generally fall into two categories:
1) Probate assets; and 2) Non-probate assets.
Probate is generally necessary when a decedent owned probate assets at death. The probate proceeding is required to formally pass ownership of the decedent’s probate assets to the decedent’s beneficiaries and to complete the decedent’s financial affairs.
Non-probate assets are generally assets that:
a) Have designated beneficiaries who inherit ownership rights to the asset immediately upon the decedent’s death; or
b) Assets that are jointly owned with the decedent and are such that full ownership passes by operation of law upon the decedent’s death.
Examples of non-probate assets include, but are not limited to, the following:
Property held in a revocable trust;
Property that is held in joint tenancy or as tenants by the entirety;
Bank or brokerage accounts held in joint tenancy or with payable on death (POD) or transfer on death (TOD) beneficiaries; and
Any life insurance policy, annuity contract, or individual retirement account that lists beneficiaries other than the decedent or the estate as the beneficiary.
Probate assets are generally assets that were owned solely by the decedent, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
Examples of probate assets include, but are not limited to, the following:
A bank account or investment account that is solely in the decedent’s name;
Real property that is titled solely in the decedent's name or held as a tenant in common (including homestead property, although homestead property is generally exempt from creditors' claims);
Personal property, such as jewelry, artwork, automobiles, and boats;
An interest in a partnership, corporation, or limited liability company;
Any life insurance policy, annuity contract, or individual retirement account that lists either the decedent or the estate as the beneficiary; and
Non-probate assets that list a deceased person as the beneficiary.
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Lauren A. Merritt, P.A.
111 S. De Villiers Street, Ste. B
Pensacola, FL 32502