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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. Assets that are in the decedent's own, individual name are assets that go through probate in Florida.  Your last will and testament tells where your probate assets are distributed upon your death.  Florida has three types of probate:

  • Formal Probate Administration
    • When assets exceed $75,000 in value and/or debts exist 
    • Attorney definitely needed here
  • Summary Probate Administration
    • Assets less than $75,000 and there are no debts
    • Attorney advised but not completely necessary
  • Disposition without Administration
    • For very small estates in order to pay back someone who paid for a funeral bill, typically

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 probate, please see the following:

 

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