Welcome to my blog! This is my first post and I am excited to educate readers in Plantation and other areas of Broward County about estate planning and probate & trust administration. One topic that is near and dear to my heart is what a Last Will and Testament is and does, and what it is not and does not. A Last Will and Testament(referred to herein simply as a “Will”) does not keep your estate out of probate. That’s right . . . . . . . your estate does not end up in probate because you didn’t have a Will.
Now, that doesn’t mean you shouldn’t have a will, because there are many reasons to have a one. But often times, people make a Will assuming that it is going to accomplish certain objectives, and unfortunately because they are misinformed, there are unintended consequences.
Florida Probate is a process of transferring title to your assets at death. If your assets don’t automatically pass to someone (discussed more below), then they must go through the Florida probate process in order to properly transfer title to the recipient. Then what does a Will do? A Will controls the probate process. If you have assets that pass through probate then the Will controls who receives those assets and who is appointed to be in charge of the process (called a personal representative in Florida, aka executor). A Will does not have any impact over assets that don’t pass through the probate process.So what doesn’t pass through probate? Potentially lots of things! Do you have an IRA or 401(k) with a designated beneficiary? Do you have a life insurance policy with a designated beneficiary? Do you have a bank account that you added your adult child on in case you need help paying bills as you get older?
These are all examples of assets that don’t pass through the probate process and that are not controlled by the provisions in your Will. For instance, let’s say that your only asset is your IRA with a balance of $700,000, and the IRA names your daughter and son as beneficiaries. Your Will leaves $50,000 to each grandchild and then the balance to your girlfriend because your kids never visit you. Guess what . . . . . . . . your kids get your entire IRA and your grandkids and girlfriend get nothing because the IRA passes outside of the probate process and the Will only controls assets that must pass through probate.Consulting with a lawyer is tremendously important because estate planning is tricky and unintended consequences happen all of the time.