Estate Planning

Probate

The probate process administers the assets in an estate. Essentially, it is the process of retitling assets in the name of the new owner. When an asset is titled in the name of the decedent, the probate process is initiated so the decedent's name can be removed from the asset's title and the heirs can receive the asset retitled in their name(s).

As an example, let us say that your father died owning a house. His name must be removed from the deed and the intended beneficiary's name must be inserted on the deed instead. Probate is the process that allows this to occur.

What a Will does in Probate
A Will is the instrument that controls what happens in probate. For example, the Will has the "dispositive" provisions that allow property to go to particular people or entities. A Will may say, "my son gets half the estate and my church gets the other half." Or it may say, "my estate shall be divided equally among my three children." However, if no assets pass through probate then the Will has absolutely no control.
When a Will does not control an Asset
Generally, married couples purchase property together as husband and wife. Under Florida law they are purchasing property with a joint right of survivorship. This form of ownership means that when one spouse dies, the other automatically owns the entire property. Because title did not have to be changed, the Will never controls the disposition of the property.

Remember: A Will only has existence in probate. It only controls assets that must go through probate and have title changed. It does not control any assets that pass with joint right of survivorship (i.e. real property owned by a husband and wife or a bank account with two names on the account.)