Probate & Estate Administration

Probate

Like most institutions, the probate system is sometimes wrongly criticized by those who are misinformed. Probate is simply the process by which a court authorizes, according to the decedent’s will, the paying of a decedent’s bills and the transfer of property held solely in the decedent’s name. The Court will authorize these transfers according to general law if no Will is found. Contrary to what some people think, if you don’t have a Will, the State does not “take” your property. Rather, State law just writes a Will for you based on public policy as stated in the law. This is not advantageous to your surviving spouse.

The operation of law and/or trusts (discussed below) can help you avoid probate. Keep in mind, however, that even though you plan
to avoid probate, it is still an excellent idea to have a current Florida Will to cover assets which inadvertently or unavoidably were not transferred.

Operation of Law

By using the operation of law to transfer property, you are letting the property pass automatically to your heirs without further documentation or planning. Ways to transfer property by operation of law include: putting property in joint ownership with a survivorship interest, such as life estates on real property; a joint tenancy with right of survivorship for real property; bank accounts that pay on the death of the account holder; or stocks and bonds held in trust for another party. The other person on the property title or account name automatically gets the property when you pass away.

Real estate, automobiles, and life insurance are all examples of
assets that can be transferred without probate if the proper procedure is followed.

Be aware, though, that by adding names to the title, you may create problems in transferring the property or changing the intended beneficiary of the property. Titles transferred before death, however, do not require judicial involvement and can help you avoid probate in some circumstances.

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