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Does a Last Will and Testament Avoid Probate in Florida?

Having a last will and testament in Florida does not ensure that your assets avoid probate upon your death. A last will and testament distributes your probate assets to the correct beneficiaries. Your probate assets are assets that you own in your own, individual name.  Your last will and testament tells the Florida probate court where these assets are distributed upon your death.  These probate assets are distributed under the rules of the Florida Probate Code, which generally means you need to hire an attorney to assist your heirs with the process.

In creating your estate plan, you need to know where your probate and non-probate assets are distributed upon your death. Non-probate assets include jointly held property (land, bank accounts) or assets with beneficiary designations with payable on death designations (life insurance, annuities IRAs).  These assets are not distributed according to your last will and testament but are instead distributed according to the beneficiaries thereon.  This means that the last will and testament does not control these assets, which can lead to unintentional consequences with unplanned estates. As an example:

Mom has a falling out with her daughter and wants to disinherit her. Mother changes her last will and testament with her attorney so that daughter is disinherited. Mother does not change the beneficiary of her individual retirement account (IRA) which still names the daughter as a beneficiary.  Upon mother's death, while her probate estate may not go to her daughter, the IRA will.  The reason is that the last will and testament did not effect the IRA beneficiary designation.

If you want to learn more about estate planning or probate avoidance, please sign up and attend one of our monthly free estate planning seminars.  We also have more information on estate planning and other elder law topics in our legal library



D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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