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Do Wills Need to Be Probated In Estate Planning?


Figuring out both the overlap and differences between estate planning and probate can be complicated. For example, while many wills are never probated, most of them probably should be. What we mean by that is: when a will is presented for probate, an estate is open, and a personal representative is appointed, and the “probate assets”—i.e. those that were not jointly owned and do not have beneficiary designations—are subject to the terms of the will. The purpose of probate is to determine who owns a given asset, therefore, if something is jointly owned or has a Payable on Death designation, there is no question as to its ownership.

Determining Ownership without Need for Probate

While there are always exceptions, most of the time, you can determine ownership without the need for probate. For example, there isn’t necessarily a need to probate the will when there are beneficiary designations or joint ownership in place. In Florida, for example, if the family makes tax payments on property owned by the testator, the asset can indefinitely remain in the testator’s name.

Estates can also bypass the probate process via revocable living trusts. By transferring ownership of assets to a trust, when the trustee dies, the trust owns them and there is no need for probate. Keep in mind however that any assets that are overlooked in being titled to the trust will still need to go to probate in order to transfer ownership.

For assets like retirement accounts and life insurance policies, which should have beneficiary designations in place, probate is not necessary either and, in fact, they cannot be transferred to other beneficiaries in the will. Real estate also typically does not require probate if there are provisions in place to automatically pass onto the survivor because real estate is frequently owned jointly with “rights of survivorship.”

Spreading the Will for Record

Still, it can be wise to present the will for probate without an estate being opened and a personal representative appointed—a process known as “spreading the will for record.” This process preserves the will, as wills typically need to be presented for probate within three years of the date of death, and does so even if an asset is discovered outside of that three-year window frame. This can be especially important if the will’s beneficiaries are not the same as the family members, for example, where the trust receives the decedent’s property.

Contact Our Florida Probate & Estate Planning Attorneys to Find Out More

If you live in Florida, contact our experienced estate planning and probate attorneys at Gierach and Gierach, P.A. today to find out more about ensuring that you and your loved ones are taken care of with the right estate plan.




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