Probate court is often needed to determine who should receive the assets of a person who has died, especially if he or she did not have a legal will in place. Most estate planning attorneys, as well as the Florida Bar Association, can explain the probate process to families. Here is an overview, including why probate is often necessary.
It’s a myth that only people without a will will have an estate that ends up in probate. If someone dies with a will, it isn’t valid unless it’s entered into probate court. Probate also ensures that debts are paid by the estate.
If someone dies without a will, probate is a must under Florida law to ensure a person’s assets are passed on to his or her legal heirs. The unfortunate truth about probate though, is that assets might be passed on to an heir that the person who died would not have intended, such as a friend or unmarried partner.
The law is clear. For example, if someone dies leaving behind a husband or wife and children, the surviving spouse inherits all of the probate estate. The same would happen if there were no children in the picture. If an unmarried person dies but leaves behind children, the kids inherit the entire estate. If the deceased person has neither a spouse nor children, the probate estate goes to parents or brothers and sisters.
Keep in mind, the process in Florida applies only to what are considered probate assets, which are assets that are only in the name of the person who died, or the person and a co-owner, but the transfer of ownership is in question. Real estate is a probate asset. A bank account or an investment account is not.
The best way to handle probate, whether there is a will involved or not, is to seek the help and guidance of an experienced Florida estate planning attorney, who will guide you and your family through the entire process. And, if you don’t have a will get one. That will save your family from a long, expensive and potentially damaging probate battle.
Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.