Estate Planning Myth #1: Having a Will Allows Your Estate to Avoid Probate

A Will, also known as a “Last Will,” or a “Last Will and Testament,” is a document that disposes of a person’s property after a person’s death. It also may appoint a personal representative to administer the person’s estate. A Will plays a fantastic role in estate planning in that it empowers the person, instead of Florida law or a Florida judge, to control how the person’s property will be disposed of, who may receive the person’s property, who may administer the person’s estate, who may serve as guardian of the person’s children, and the means of disposition of the person’s body. Despite the aforementioned benefits of a Will, having a Will does not allow your estate to avoid probate, but instead may require your estate to go through probate.

For purposes of this writing, “probate” means the court process by which the person’s property is disposed of or transferred to beneficiaries after the person’s death. Probate usually occurs when an asset or assets are titled in only the person’s name. In addition, in Florida, probate may occur if the person has a Will or not.

Probate, though an effective means of transferring the person’s assets and processing claims of the person’s creditors, is unpopular for several reasons. First, probate may result in substantial expenses, including, but not limited to, court costs, costs for publishing notices to creditors, and attorney’s fees. Second, probate is a court proceeding and it (and the Will) become public. Third, the completion of probate in the court system may not occur for months or even years.

Nevertheless, when a person dies and has a Will, in order for a Will to be established as valid, and for the directions in the Will to be followed, a Will has to be probated. Thus, a Will that needs to be enforced actually requires probate.

In Florida, the following are several vessels that may allow an estate to avoid probate:

1) Property titled as tenancies by the entirety or as joint tenancies with the right of survivorship;

2) Properly drafting and executing a living revocable trust and titling property in the name of the living revocable trust;

3) Designating beneficiaries of life insurance policies, securities, retirement accounts, and bank accounts;

and

4) A properly drafted, executed, and recorded “Lady Bird” deed (also known as an enhanced life estate deed or a transfer-on-death deed).

*This document contains legal information, but does not contain legal advice.

*This document has examined laws in effect in July 2011.