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Ask A Probate Attorney: Is Probate Required If There Is No Will?

Probate Attorney

As an Estate Planning and Probate attorney, I can’t overemphasize the importance of having your Will in place when you die. A properly prepared Will is a blueprint for how you want your assets to be distributed and to whom. Being human, however, we tend to procrastinate. This is especially true when it comes to dealing with unpleasant subjects such as preparing a Will.

Wills, after all, are made in contemplation of our mortality. Not something any of us want to think about.

What Else Goes Into Preparing A Will?

Preparing a Will involves making important decisions. To whom do we wish to leave our assets and in what amount, taking family dynamics into consideration. To help alleviate some of the conflicts that are bound to occur, I encourage my clients to hold a frank discussion with their family members. Let them know exactly what they are planning to leave to whom and why we are making that decision.

Although that discussion doesn’t alleviate all of the issues between family members, it’s at least a start.

Because we tend to procrastinate, there are still a significant number of us who die without having a properly executed Will in place. According to a 2019 Survey taken by Caring.com, although most people believe having a Will is important, only 40% have gone to the trouble to complete one.

When someone dies without a Will, their relatives are left without a clue as to what they should do. Confusion and discord can result over who should get what from the estate, and in what amount. As a practicing probate attorney, I’m often contacted by a deceased person’s relatives inquiring whether probate is required if there is no Will.

What Is Probate?

Probate is the court-supervised method for handling an estate after someone dies who owns a property of any kind. Through the probate process, heirs are determined, debts are paid, and assets distributed to the designated individuals according to the terms of the Will. If a person has a Will, he or she determines who the decedent’s assets go to upon death. Without a Will, the person dies “Intestate” and the state statutes determine who gets the decedent’s property.

What Are Probate Assets?

The following is a sample list of assets requiring probate:

  • Bank accounts or investment accounts that are not designated as payable upon death.
  • Life insurance, annuity accounts, and IRA accounts without any beneficiaries’ names listed.
  • Non-homestead property titled in the deceased person’s name only or titled in the name of the decedent and someone else as tenants in common.

Dying Without A Will

The term intestate applies to a person who dies without leaving a Will.

When a Florida resident dies without having made a Last Will and Testament, the intestacy succession laws found in the Florida Probate Code under Part I, Chapter 732 of the Florida Statutes apply. Those statutes dictate who inherits the deceased person’s assets in what order of priority.

Just because a person dies without a Will doesn’t mean they are exempt from probate, To the contrary, unless the person has no or very limited assets, a probate action needs to be filed. This is to ensure that the right person or persons inherit the estates’ assets according to their relationship to the deceased, as outlined in detail in the intestacy statutes.

Disposition Without Administration

No probate otherwise known as Disposition Without Administration can be used in limited cases only. This occurs when the deceased didn’t leave behind any real estate and the only assets are either very minor in size, exempt from creditors’ claims or don’t exceed the number of final expenses.

Finding A Probate Attorney In Coral Springs

Should you have questions about whether or not your deceased relative’s estate is exempt from probate feel free to contact Gary I. Handin at 954-796-9600 to schedule an appointment, today.

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Law Offices of
Gary I. Handin, P.A.

Providing professional legal services for the city of Coral Springs. Contact us today for a free consultation – 954-796-9600.

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