Written by attorney Ronald A. Jones | Jul 28, 2011

My husband died, do I need to bring a probate in Florida?

Maybe, maybe not.

When someone dies and leaves property, and by property I mean not just real estate but anything of value- bank accounts, CD's, insurance policies, anything that's worth money, there's 3 basic ways that property can pass at death.

1st way is 'by contract', where the person who died had a contract with some third party who is holding the money or property, and the contract says that they will pay or transfer the property over to named beneficiaries upon their death. Most common example of this is life insurance, where you have a contract with Met Life, the contract says that you name or your wife as beneficiaries, and when you die the wife provide the death certificate to Met Life, and they simply cut checks to the beneficiaries. But bear in mind you can do this with most sorts of financial instruments; Bank accounts, stocks, bonds, CD's 401K's, annuities, IRA's and that sort of thing.

2nd way property can pass at death is by operation of law; this is where two or more people both own the property and when one of them dies, it passes automatically to the surviving owner or owners. Most common example of this is "Joint Ownership" or "Joint Tenancy with rights of survivorship". There are other types, but this is the most common. This is very common among married couples; husband and wife are nearly always joint owners of bank accounts and their home; it is less common but not unheard of between unmarried people.

3rd way property can pass at death is by probate; where if you left a will property passes by the will, or if you didn't leave a will it passes according to the states intestacy laws. Basically, a judge looks it over and signs off on who gets what. BUT, the point is property USUALLY only passes by one of these methods at a time; if it passes by operation of law or by contract it doesn't usually pass by probate as well. .

So, depending on how your husband held property and how it's titled, the will may or may not need to be probated.

What it will depend on is 1) whether anyone else is named as a joint owner on the deeds to the property, or the car or the bank accounts and other things 2) whether he named beneficiaries on any of the accounts.

If you are listed as a joint owner with rights of survivorship on the deed or if you are listed as his wife on the deed, then there is a joint ownership with rights of survivorship; all you have to do is take his death certificate down to the court house and record it. They will charge you $10 to record it in Florida. Take his death certificate to the bank, to the DMV, to the insurance agent and stockbroker; if you are listed as joint owner or if you are listed as beneficiary they will take his name off of the accounts and car and put your name on them or pay you the accounts. If there is any property that is not joint owned, or does not name a beneficiary, then you are probably going to have to probate the estate.

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