Though there are many misconceptions about estate planning, one of the more common ones is that having a will excludes you from going through probate. However, you still have to go through probate when there is a will and no living trust.
Some are firmly against probate simply because they have been told to avoid it. Make the educated choice by first understanding what probate is and having a discussion with your estate planning attorney. At that time, you will have a firm grasp as to whether probate fits your needs.
How Do Wills Work in Florida?
Wills are not recorded in Florida, so there are no public records after they are created. Even if you are a beneficiary, you may not know that you are until the probate process begins.
To be valid, wills must be written statements made by competent adults. This means the person must understand the nature of the will, the assets they are passing down, and the beneficiaries to whom they are leaving their assets. Additionally, the will needs the creator’s signature and the signatures of two witnesses who aren’t beneficiaries to avoid conflicts of interest.
You can change a will at any time before passing. You can amend it, or you can outright revoke it entirely. To change it, you must add a written statement called a codicil. It must be signed and witnessed like the original will. To cancel it, either make a new will that states that it replaces the old one or physically destroy the original will.
It is strongly recommended that you update your will after major life events, like marriage, divorce, or having children or grandchildren. This keeps your will current and helps avoid problems and confusion during probate. A will and probate attorney should be able to guide you in this regard.
What is Probate?
When does a will go through probate? In Florida, this is typically after the death of the will’s creator.
Probate is a process in which a court distributes your assets to beneficiaries either according to your will or via state law if no will is in place. If you have written a will, then the court verifies that it is valid. There is also a process for people who wish to challenge or contest the will.
Common reasons for contesting a will include claims of undue influence, lack of mental capacity, and improper signing procedures. The court then examines these claims to determine the will’s legitimacy. This process safeguards the interests of all parties involved and upholds the integrity of the deceased’s final wishes.
The point of probate is to oversee the execution of a will and ensure that any debts left behind by the deceased are handled. This is crucial because creditors have a right to be paid from your estate. Usually, any debt or remaining expenses are paid with the deceased’s assets before they are distributed if there are funds available in the estate.
The executor of the estate, appointed in the will or by the court, is responsible for managing these tasks. They play a key role in gathering assets, paying debts, and distributing the remainder as the will or state law directs. This makes probate a comprehensive process, balancing legal, financial, and personal aspects of the deceased’s estate.
Should I Avoid Probate?
This is a personal question that you should discuss with a will and probate lawyer. Some people may choose to create wills because they want the oversight of probate. Other people want to avoid probate because of how public the process is and the estate taxes that come with it.
It’s essential to understand that probate isn’t inherently negative. It provides a legal framework to ensure debts are paid and assets are distributed correctly. However, you might find alternatives like living trusts more suitable. These can offer more privacy and a quicker distribution of assets, but come with their own set of complexities and requirements.
Ultimately, your estate planning attorney will recommend the best path for you and your family. When you consult with an estate planning attorney, they can explain the nuances of probate and alternatives like trusts.
Trust the Attorneys at C. Alvarez Law
C. Alvarez Law is proud to offer our clients resolutions to some of the most challenging conflicts in their lives. If you have further questions, contact us to schedule your consultation and how your wills and trusts may affect family law disputes, such as divorce, prenuptial agreements, postnuptial agreements, and more. Trust us to handle your concerns with the utmost care and professionalism, ensuring your peace of mind and the best possible outcome.
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