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Does filing a will in court automatically subject it to probate?

Many individuals would prefer to avoid the privacy invasion into their private financial affairs that may result from the probate of an estate. In addition, court involvement also means a schedule set by the court, which may involve a delay of weeks or months.

In Florida, there is a difference between filing a will and putting it through probate. The former may be a formality, whereas the latter is typically for the purpose of determining the proper distribution of a decedent’s assets. 

Someone in possession of a decedent’s last will and testament should consult with an attorney to understand whether a court filing may be required. An attorney can also explain the type of probate that may be required, such as formal, summary, or simply a personal property distribution.

Yet filing a will with a Florida probate court may be a wise move even if the estate has no probate assets. Having a will on file may help to avoid estate administration challenges. Filing a will may also facilitate the filing of any tax forms with the IRS, even tax forms that indicate that no estate tax is due but preserve the estate’s portability election.  

Fortunately, a skilled attorney can help an individual craft an estate plan designed to avoid probate. Certain types of property are considered non-probate assets under Florida law. Accordingly, a decedent’s estate might include provisions like a living trust, real estate titled as joint tenants with a right of survivorship, life insurance and retirement account policies with designated beneficiaries.

Source: FindLaw, “Florida Wills Laws,” copyright 2015, Thomson Reuters



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