Probate is the name of a court process for transferring ownership of property after the owner’s death to the persons who have inherited that property. Probate happens whether or not the person now deceased left a Last Will. A Last Will never avoids probate. On the contrary, the Last Will is a set of instructions to the probate court as to who should be given the assets.
A very common misconception is that if Mom or Dad has a Will, no probate will be needed when they pass away. That is wrong. There are some steps people can take to avoid a probate administration when they die, but signing a Will is not one.
With increasing frequency, people are setting up bank accounts and investment accounts with a “designation of beneficiary” to transfer on death (TOD). Those stocks or funds do not go through probate.
Starting October 1, 2011, step-parents in Florida have even more incentive to have a Last Will.
A common myth in Florida: in order to inherit from a parent, a child must survive the parent. In Florida that is not true.
People often ask us if we can recommend estate administration or estate planning services, software or books, and we’ve been looking, honestly. Meanwhile, we did find a good book on organizing all the information and records that many modern Americans come to possess. It’s called Get It Together – Organize Your Records So Your Family Won’t Have To, by Nolo Press.
There is a “glitch” in Florida law which creates legal exposure to a Trustee for two years following the settlor’s death if no probate is done.
No tears were shed this year when the Florida Legislature finally – after far too many years – revised that portion of the homestead law that competed for the “worst idea” among all Florida laws.
Most Florida lawyers are, or should be, aware of the fact that you cannot leave your homestead to anyone if you have a spouse or minor child.
Not only is it expensive and time-consuming if an original Will is lost and the contents must be “proven” to the satisfaction of the Florida Court, but sometimes it’s not possible.