Many people I talk to are shocked to find out that having a Will doesn’t mean you’ll avoid probate. In fact, unless you die with no debt and no assets, a Will makes it very likely your estate will be subject to probate.
So, why have a Will?
If you die without a valid Will, the state decides who gets your stuff. In Florida, that’s covered in Chapter 732 of the Florida statutes. Basically, it says that if you’re not married and have no children, everything goes to your parents; if they’re dead, it goes to your siblings. If you’re married, it goes to your wife and possibly your children (depending on the circumstances).
The statutes don’t address who will be the guardian of your minor children. That will be decided by lawyers and a judge ($$$).
If you create a Will, you can choose who gets your stuff – subject to Florida’s laws mandating how much you have to leave your spouse and restricting who can legally inherit your homestead. You’ll also be able to name who you’d like to serve as your Personal Representative if there is a probate, and who you’d trust to serve as guardians of your minor children.
When would a probate be necessary?
Generally, a probate would be necessary if you die with certain types of assets held in your individual name – such as bank accounts, investment accounts, savings bonds, and real property. No one will be able to access or manage those accounts/assets until a judge declares who is entitled to them.
Unfortunately, in Florida, this usually requires a fairly long, drawn out process involving a lawyer ($$$).
Occasionally a simplified process called Disposition Without Administration can be done without a lawyer, but it still costs over $200 just to file the form with the probate court. Use of this simplified process is very limited – basically it’s used when a person dies with a couple thousand dollars in a bank account, there’s no debt, and the spouse or child wants to be reimbursed for the funeral and medical expenses they paid out of their own pocket.
Is there any way to avoid probate?
Probate isn’t always a bad thing. It provides for the orderly payment of your debts and distribution of your remaining assets. It also legally protects your beneficiaries and Personal Representative from the claims of your creditors. This can be very valuable in second marriage situations, or in any family situation where there could be problems.
But, yes, there are ways to avoid probate and some of them are very simple and inexpensive. The simplest way to avoid probate is to name joint owners or beneficiaries on bank and investment accounts. Joint ownership on real estate will also avoid probate. In Florida, you can also name a beneficiary on your real estate deed (I don’t recommend this except in very limited situations). Creating a revocable living trust and retitling your assets in the name of the trust will also avoid probate.
Is there a downside to naming beneficiaries or joint owners?
Yes, sometimes using these methods without legal advice can create unforeseen problems. If you name beneficiaries or joint owners on all your liquid assets, and then a probate is needed for other assets, there’s no money to pay for the probate or taxes and your house, business, guns, or valuable heirlooms may have to be sold to provide those funds. The assets you left to the joint owner or beneficiary became 100% theirs the minute you died, and they have no legal obligation to share them with anyone or use them for your probate expenses or taxes.
Joint ownership with anyone other than your spouse can also create problems with creditors, divorces, and Medicaid planning.
Additionally, under Florida law, you have to leave your spouse a minimum of 30% of every asset you have any ownership in – even those with beneficiaries and joint owners. If you don’t, your spouse can take it away from the named beneficiaries. And, if you decide to leave your homestead to someone Florida says you can’t leave it to, the state will penalize you and your proposed beneficiary and the judge will distribute the homestead according to the law, not your wishes.
Can I type or handwrite my own Will?
Florida has many laws pertaining to what makes a Will valid. If these laws aren’t followed to the letter, the Will isn’t valid and you’ll be treated as if you died without a Will. So while you could certainly type up something simple, or use a form you find on the Internet, I wouldn’t recommend it unless you’ve personally researched and complied with all the Florida laws.
Florida doesn’t recognize handwritten Wills at all.
Additionally, never write on your original Will. Most of the time, the changes you tried to make won’t be valid, and you could end up making your entire Will invalid.