February 14, 2016

Wills and Probate

10 days to file with the original Will with the Court: The custodian of the will must deposit the will with the Clerk of the Circuit Court, within ten (10) days after receiving information that the person is deceased. Do not delay, call our office today. (850) 307-5665.


Common Misconceptions Wills & Probate


  1. Having a Will avoids Probate: Incorrect. The Will, if valid, is admitted to probate.
  2. No Will = No Probate. Wrong. If you die without a valid will an intestate probate proceeding is opened. Without a will the court will divide your property according the statutory rules and procedures.
  3. Trust = no will. A good estate plan will have both a trust and a pour over will to address the disposition of any property not placed in the Trust.
  4. Funeral expenses provided for in a Will: By the time a PR is appointed by the Court and assets distributed, the funeral has long passed. Discuss with your estate planning attorney on how to provide for these expenses.


Benefits of having a Will


Since property will pass through probate with or without a will someone may wonder what the benefit is to having a will. Besides being able to name a personal representative and make specific devises with your property under the will often grants certain powers that would otherwise require court approval causing further costs and delay.Without a power to sell property under the will, a Personal Representative will need to seek court approval to sell real property and incur additional expenses in securing a bond.

Trusts: Additional time and expense is required to set up a trust but it can be well worth the investment to have your property avoid probate.


Who Absolutely NEEDS a Trust?


  • Own Property in more than one State
    • If you own property in more than one state when you die, not only is a probate proceeding opened in the state where you lived when you passed but an ancillary probate in the other states where you owned real property is opened to transfer title and distribute assets from the property. Ancillary probate requires additional court, legal and other fees.


  • Blended Families
    • Married couples with children from prior relationships need to have essential estate planning documents in place to ensure their surviving spouse is provided for during the remainder of his or her life with the remainder to the surviving children. Florida intestate laws provide for the distribution to the surviving spouse and children from the prior relationship at the death of the first spouse (potentially leaving insufficient assets for the surviving spouse).


  • Avoiding Probate
    • If your goal is to avoid probate (which in most estate planning scenarios due to costs, time, etc. it should be) then a Trust can assist you with accomplishing your goals. A Trust also allows you to have long term control over the distribution of your assets. The Probate process involves notifying creditors, transferring title and distribution of assets and does not provide for long term control over distributions under different life scenarios.


Read or Download the Protecting Your Business Estate Planning PDF




Consult with an estate planning attorney to assist you with how your assets are named.If you have a Last Will & Testament and do not want to set up a trust, many of your assets can still be set up in a way to avoid probate.Start by identifying your assets: real property, bank and retirement accounts, life insurance policies, etc. Each of these assets need to be reviewed with your attorney to ensure the accounts are properly named (i.e. a deed in the name of Mr. and Mrs. Smith, Husband and Wife).

While the initial process of setting up your estate to avoid probate may seem a hassle and something that you can put off, anyone having handled a probate proceeding for a family member usually has plenty of stories that motivate them to engage in proper estate planning to relieve that burden on family members.


Probate Process: Initial consultation is needed.  To determine what type of probate administration, if any, is needed, an initial consultation with an attorney is needed.  Bring a copy of the will, if there is a will, and an initial consultation fee of $225.00.  Depending on the decedent’s assets, how and to who they are named, will determine the type of probate administration, if any, is needed.