Volume XXXI: December 2020 THREE PART SERIES: FREQUENTLY ASKED PROBATE AND ESTATE RELATED QUESTIONS PART ONE
Volume XXXI - December 2020
THREE PART SERIES:
FREQUENTLY ASKED PROBATE AND ESTATE RELATED QUESTIONS
By: Norman W. Nash and Yvette Rodriguez Brown
Question 1: When someone dies without a Will, a Trust, or any other estate planning in place, how can I get the deceased person’s assets to the proper heirs and who gets what?
Answer: If someone does not have anything in place to direct where assets will go upon death, Florida statues dictate who gets what. In order to actually change ownership of assets, a probate court proceeding is required. Generally speaking, assets go to the nearest living relatives but there are exceptions depending on the specific facts. For example, if a person dies and is survived by a spouse, the assets will go to the spouse unless the deceased person has children from a person other than the surviving spouse. In that case, the surviving spouse gets one-half of the assets. The other half of the assets go to all of the deceased’s children including any children the deceased had with the surviving spouse. If the homestead is owned by both the deceased and the surviving spouse, then the surviving spouse gets the homestead. However, if the homestead was owned only by the deceased, then the surviving spouse gets to stay in the homestead for life and the children, whether they are all children of the deceased and the surviving spouse or not, unless the surviving spouse elects to take a one-half ownership with the children. It is even more complicated if there are minor children.
Takeaway: The takeaway is that you should have a current Will or Trust in place for all of your assets and revisit it every so often.
Question 2: My father was single when he died and his Will leaves everything to me and my sister. Why must we have a probate court case to get his homestead and bank accounts in our names?
Answer: A Will does not, by itself, transfer anything to anyone. A Will states the deceased’s desires regarding who gets the assets. However, probate court orders are required to transfer real property in the land records and are required by financial institutions and others holding the deceased’s assets before they will transfer the assets to the persons named in the Will. The reason is simple. A bank and others holding assets have no way to know if the Will is a forgery or if there is a later Will that leaves the assets to someone else.
Takeaway: The takeaway is that a Will is a statement of the deceased person’s wishes but does not transfer assets without a probate court proceeding.
Question 3: How can I avoid probate?
Answer: There are a number of ways to avoid probate. The basic way is to use beneficiary designations. A beneficiary designation is simply a written document that says when I die, I designate the following person to receive a particular asset such as a bank account. A beneficiary designation is different than a Will or a Trust. Beware that different types of beneficiary designations require different types of written documents. A person cannot just scribble on a piece of paper who gets what. A familiar beneficiary designation is for life insurance. The person whose life is insured designates who get the life insurance money when the insured dies. Real estate can be owned is a variety of ways so that when a person dies, the real estate automatically goes to someone else. Bank accounts, CDs, financial accounts, stocks, and many other assets can be set up with beneficiary designations. They are not always called beneficiary designation but that is what they are. For example, at many financial institutions, pay-on-death or POD designations can be made. It is done with a form from the financial institution and is similar to a life insurance designation
Takeaway: The takeaway is that most, if not all, assets can be transferred at death without a probate court proceeding if proper planning is done prior to death.
Norm Nash has been practicing law for over thirty years in the areas of probate, real estate, commercial, corporate and business transactions. He attended law school at the University of Denver where he graduated in the top fifteen percent of his class, was an editor on the law review, and earned the AmJur award for the highest grade in ethics.
Yvette Rodriguez Brown is a Stetson University College of Law graduate with over 20 years experience in Wills & Probate, Bankruptcy and Local Government. She also speaks Spanish.
This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article. Further, this information is subject to change due to the rapidly changing legal, political and business environment.