If I Have A Will I Avoid Probate?

Many people have the misconception that a will avoids probate. This is incorrect. Probate is a court process that is required when a person dies owning assets in the decedent’s own name, and with no beneficiaries to receive the assets. It can be required if the deceased person left a will, and it can be necessary if the deceased did not leave a will. It can be applicable to some of a deceased person’s property, even though it may not apply to other assets.

Thus, whether probate is required de- pends upon how assets are held. For example, a deceased person could have a bank account payable on death (POD) to the person’s children, a bank account owned jointly (two names with OR between them), and a home in the person’s own name. The account that is POD would not require probate because it passes automatically to the beneficiaries; the other account does not require probate because it is owned jointly, with right of survivorship; the home requires probate because it does not pass automatically.

If a person dies owning the primary residence in the deceased person’s name, and the person’s property will pass to the person’s heirs, an additional step be- yond basic probate is required. Homestead (the word does not just refer to the tax exemption) passes in a rather unusual and complex way in Florida. Homestead vests in heirs at law free of the claims of creditors, but a probate court order is required to show how it has passed.
Consequently, if there is a home, an additional process is required.

If a person dies owning real property jointly with a spouse or another person (with a right of survivorship) certain documentation must be recorded in the public records of the county so that the title to the property is clear in the records.
Probate administration requires a lawyer. If you believe probate is or might be required, contact us for additional information.

Attorney Michael A. Pyle, of Pyle, Dellinger & Duz, PLLC. 1655 N. Clyde Morris Blvd., Ste. 1, Daytona Beach 386.615.9007. e-mail: mikep@pylelegal.com or website: www.pylelegal.com