If I Have A Will Does My Estate Have To Be Probated?


Video Summary


If I have a will, does my estate have to be probated? Well, the question is not whether or not you have a will or you don't have a will. The question is: do you have any assets that are titled just in your name that do not designate a beneficiary?


An example of assets that you have that name beneficiaries is, let's say, a life insurance contract. That's your asset. You designate a beneficiary, so it's controlled by the life insurance contract and is payable to whoever you designated as a beneficiary. So that doesn't have to be probated.


Same thing with IRAs, 401(k)s. They all – you've designated a beneficiary to receive the benefits of these, really, trust. An IRA, or a 401(k), or annuities, that's all controlled by contract, and it says that when you pass away who's to receive those assets.


Another example of assets that name a beneficiary: if you have a joint account, which is usually the case between husband and wife. They own their bank accounts jointly. They own their real estate jointly. And if they do, when one of the spouses pass away, well, the property automatically passes to the survivor. Any other assets that you own as joint tenants with right of survivorship passes automatically, or pursuant to the contract. You also look at bank accounts. You look at bank accounts that have a "payable on death" or your brokerage account, which is "transfer on death," and so those assets pass pursuant to your contract with the brokerage house, or whatever financial institution.


However, if you have an asset that's just in your name, then your estate must be probated. It doesn't matter whether you have a will or you don't have a will; that's what determines whether or not you have a probate proceeding.


So what's the advantage of having a will? Well, a will says – directs who you wish to receive that asset so that you don't leave it to the state of Florida and the statutes to say who receives the assets. So you can name who you want to receive your assets under a will, and you can also designate who you wish to be in charge of your estate, which is called an "executor" or a "personal representative."


So the question is not whether you have a will and it avoids probate, or whether you die without a will. It only matters whether or not you have your – you die with assets that are just in your name and we must have a probate proceeding to determine who the beneficiary of that asset would be. By looking at a will or looking at the Florida statutes, the Florida statute does set forth that if you die without a will, then it passes to all of your heirs, or your children, or, if you have deceased children, to their children or grandchildren. And it goes on to explain who else would receive it if you don't have any children.


So if you have any questions about an estate proceeding, with or without a will, well, give me a call at (727) 847-2288.