Probate is a procedure. Probate is the formal legal process by which a decedent’s will is submitted to the court and authenticated. Meaning the court accepts, “yes, this is a will. It’s properly executed.”
Attorney L. Reed Bloodworth is the managing partner of Bloodworth Law, with offices in Orlando, Florida, and Winter Haven, Florida.
At Bloodworth Law, our team handles estate planning services for clients across Florida and can work with you remotely, via video conference, or in the office with the appropriate safety measures taken to protect you as we help you with your legal needs.
What is Probate and Why Does a Will Have To Go Through Probate?
Probate is the legal procedure your estate goes through after you pass away. A court will start the process of distributing your estate to the proper heirs.
Let’s discuss why a will has to go through probate. Probate is the legal transference of titles of assets of the creator of a will, the testator, to the will’s beneficiaries. If there’s an asset for which there is no beneficiary named — which means there’s not a Payable On Death beneficiary named within an asset — then it has to go through probate.
If there’s a will, then the will directs where an asset goes. However, there may be problems with the will which ensures that it will go through probate.
Asset with a Title? No Beneficiary? Probate
If an asset has to have its title transferred after the testator dies, and there’s no named beneficiary, then it has to go through probate, whether there’s a will or not.
- Married testator
- Owned by testator
- Testator doesn’t leave home to spouse
For example, probate is necessary when a testator is married and they live with their spouse in a house that is their homestead. But in this scenario, the house is owned only by the testator. Under the testator’s will, he attempted to leave the house to someone other than his spouse.
However, pursuant to Florida law, the testator is not allowed to do that. Under Florida law, the spouse is entitled to a life estate in the house so that they can live in the house until they die.
Spouse Can’t be Left Homeless
Alternatively, the spouse can take 50% of the value of the house and the remainder would go to the beneficiary named in the will. Florida law does not allow a testator to leave their spouse homeless.
Sometimes people attempt to do this, but if and when this fails, they are going have to go through probate.
What if there are children? What if there’s an ex-spouse that the home was promised to? There are many situations where you may incorrectly put in your will that you want “X” to happen.
Florida Law Decides What is Allowed
But just because you put it in there, doesn’t mean that you’re allowed to do it. For example, if when you create your will, you’ve accumulated quite a lot of money. You’ve put specific amounts into the will stating, “Child A is going to get $10,000. And this person will get $10,000, this person will get $5,000.”
Assets Increased or Decreased?
But at your death, if your assets have decreased or increased, then, the specific amounts have to be adjusted and will have to go through probate.
Creating a will and estate planning are not do-it-yourself projects. If you’re over 18, you should have your estate planning completed and your legal documents reviewed by an attorney.
Reed Bloodworth is the managing partner of Bloodworth Law. Give Reed a call to talk about how Bloodworth Law can help you and your family.Consider sharing this post