By Amy P. Slaman
Probate is necessary when assets are titled in the deceased person’s name and the asset is one that does not automatically transfer on death through a beneficiary or pay-on-death designation. Many people think having a Last Will & Testament (or a “Will”) means probate court will be avoided. However, a Last Will & Testament does not function as a beneficiary or pay-on-death designation for the purpose of automatically distributing assets out of your name and to your intended beneficiaries. The purpose of a Will is to allow you to decide how you wish your assets to be distributed after your death. So, for those assets that do not allow you to make beneficiary or pay-on death designations, you need a Will. Without a Will, the state will decide how your assets are distributed through what are known as intestacy laws.
So if you have a Will, why would probate be necessary? As noted above, a Will does not automatically transfer assets out of your name and to the beneficiaries of your estate. The provisions of a Will are carried out by a personal representative under the governance and supervision of the court in the state where the deceased person resided or owned real property. That process is referred to as probating a Will. Any asset titled in the deceased person’s name and not automatically transferred on death through a beneficiary or pay-on-death designation must go through the probate process in order to transfer title to a beneficiary. The probate process is virtually the same whether the beneficiary is designated under a Will or through state intestacy laws. However, by having a Will, you decide who serves as your personal representative and you decide how your assets are distributed.
Now, this is of course an oversimplification of the law. For example, under Florida law there are specific prohibitions on who you name in your Will to receive your homestead real property. If the devise of homestead under your Will falls into one of the prohibited categories, the devise will be invalid and state law will control who receives this property. Another example would be attempting to exclude a spouse from inheriting under your Will. While it is possible, Florida has very specific laws that must be followed in order to have an excluded spouse provision upheld in a Will. Yet another example involves the person named in the Will to serve as personal representative. Again, Florida has specific laws on who is qualified to serve in this capacity. If you designate a personal representative who is not qualified under Florida law, that designation fails and Florida law will control who will administer your estate as personal representative. The list of examples of the nuances of Florida probate law could go on and on. Thus, it is imperative that anyone wishing to create a Will should consult a licensed attorney familiar with the probate laws of your state.