If you are not sure how a Last Will and Testament travels down the probate road, then look no further. This road map will explain the journey of your Last Will and Testament as it finds its way to probate court. You will finally understand the meaning of a Last Will and Testament, why it’s needed, and what happens after a person dies with or without a Will. So, jump in and let’s travel along the probate road.
Using your Roadmap to Travel the Probate Road
Your Last Will and Testament contains your wishes regarding where your property ends up after your death. It is a multi-page written document that mainly sets forth your name, identifies your family, indicates what expenses should be paid by your estate, sets forth the names of specific gift recipients, and states what should happen to your remaining property.
Keep in mind that your Last Will covers property you own in your name alone. Property you own jointly with another will likely pass “by operation of law” directly to that other person. Along the same lines, certain account proceeds pass directly to a named beneficiary. For instance, IRA proceeds pass directly to your designated beneficiary, if named, and do not involve your Will or its provisions.
So, you have to remember that your Last Will is not the “be all, end all.” You likely own accounts and property that will pass to another person regardless of the language in your Last Will. Thus, if you do not want to thwart your careful planning, you need to look at all of your assets (tangible and intangible) as a whole to make sure it is traveling (passing to another) the way you intend. An example of the potential conflict may be useful. Your Last Will gives all of your property to your niece. However, your IRA names your beneficiary as your mother. Your niece would collect all of your assets that went through probate, minus the debt paid. The IRA proceeds did not pass through probate. Therefore, they pass directly to your mother.
Most people seem to know these things even generally. The confusing part is how the Last Will travels through probate. Many mistakenly believe that by having a Last Will, a person avoids probate. This is not true. Your estate enters the probate process with or without a Will. However, if you have a Revocable Trust, the majority of your estate can avoid probate. But, even people with trusts will typically have a Last Will. In those instances, the Last Will simply serves to “pour over” your assets into your Revocable Trust (if you neglected to put them in there). Otherwise, you would have to face a more complicated probate process.
How does your Will travel down the probate road?
Probate is one of the most misunderstood concepts. Basically, it loosely follows these twists and turns. When someone dies, a family member will locate a Will. The Personal Representative named in the Will files it with the Court, along with a Petition to “open probate.” The Petition lists the deceased person’s heirs, named beneficiaries, probate assets, whether there are known creditors and other information useful to the Court. As already mentioned, property owned jointly with another will pass directly to that person. Also, certain accounts, such as retirement benefits, will pass to the beneficiary, if named. If one is not named, the assets become probate assets (and subject to creditor claims). Do you see how important it is to carefully plan your estate?
During the probate process, your creditors are located (your Personal Representative will go through your mail and bank statement looking for clues), provide the creditors notice of the death (either by letter or publication), and allow a period of time to make a claim against your estate. After the statutory time periods pass, the Personal Representatives asks the Court for orders that allow the distribution of the estate and the designation of property as homestead. The process takes months to a year to complete.
It is important to reiterate that if you do not have a Will, you do not avoid probate. The process still occurs, but this time, the Court is told that a Will cannot be located. That means you do not have the opportunity to set forth your beneficiaries. Rather, your heirs must be found or come forward on their own. Also, notices of your death will be published in the newspaper to allow creditors to make claims try to get paid with your probate assets. Keeping matters out of probate is a good idea in many cases to avoid the probate costs and complications, to avoid losing the property to creditors, and to maintain some privacy.
I hope you found this roadmap useful. Share it with your friends in Florida.
Based out of Tampa, Florida, Lori is mom to a fantastic 5-year-old boy. They love to go on local adventures, travel and play with matchbox cars for seemingly endless hours. Lori enjoys reading classic novels, organic gardening, and studying languages with her son. She considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.