Wills don’t avoid probate in Florida!

Long H. Duong, Esq. Estate Planning


One more time:  Wills DO NOT avoid probate in Florida (nope, not even in Gainesville, Ocala, Newberry or Jonesville!)

My practice has become more and more about probate administration and the same question keeps popping up:

Does a Will avoid probate in Florida?

Rather than hearing a resounding NO, how about this concept:  A Last Will and Testament almost guarantees probate!

This is not to say that if you die without assets that probate must be opened.  A Will is essentially a set of instructions to your executor (called a “personal representative” in Florida) and to the probate court, as to how your estate should be administered.

So how do you avoid probate in Florida?  

The short answer is a trust – a living or revocable trust to be more precise.

The more appropriate answer is:  “Don’t die with any assets in your own name.”

Harder to visualize perhaps.  How do you avoid owning anything when you pass?

  • Make sure property passes in other ways automatically upon your death – i.e., declaring POD (payable on death) designations on your checking or savings accounts
  • Transfer property to your living/revocable trusts
  • Own property jointly with your spouse (tenancy by the entireties) or with another person (joint tenancy with right of survivorship)
  • Confirm that you designate beneficiaries to your life insurance or retirement accounts – update them if necessary!

These methods allow you to pass on property outside of probate, rendering them “non-probate assets.”

So, do I still need a Will?

Yes, of course.  You never know what else you might own during or after you pass.  If, for example, you suffer fatal injuries from a car accident, your survivors can sue on behalf of your estate.

Furthermore, if you have minor children, you are going to want to name guardians to care for your children after you pass.   Yes, you can do that with a Will!  In fact, it’s the most common way to prepare for the possibility that you are not there to care for your children if you die.

Bottom Line:  Wills serve many useful purposes, but don’t let anyone tell you that a Will can avoid probate!



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