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What Does a Will Do in Florida?

Posted by attorney Donald Lins

As a preliminary matter, it should be understood what a last will and testament does not do in Florida. The Will only applies to the matters involved in the probate of a person’s estate. It does not apply to property, money, etc. which is jointly titled with right of survivorship or where there are beneficiaries designated. For instance, if a person owns a home as joint tenants with right of survivorship with another person, at death, the home passes to the other person and the Will plays no role. Similarly, if the decedent has life insurance naming a beneficiary, the death benefits are payable to the beneficiary directly and do not go through the probate (and therefore the Will plays no role).

On the other hand, if a person dies resident in Florida and has a Will, in order to accomplish a transfer of their property a probate will need to be opened. In Florida, probate is a court proceeding in which the court oversees the administration of the deceased person’s estate, including matters relating to debts, property and minor children. The Will becomes the “roadmap" for the probate court to follow in determining most aspects of the estate including who to appoint as Personal Representative (sometimes called an Executor or Administrator in other states), who will be the beneficiaries, and how the distribution to the beneficiaries will be made. The Will may also address who should be appointed as guardian of any minor child who survives the decedent’s death. In essence, a Will is where a person can decide matters for themselves in the event of death.

In contrast, if a person dies owning property but has no Will, then a probate may still be opened but in that case the probate court, by applying Florida law, determines these issues. This type of probate is known as an “intestate" probate (as opposed to a “testate" probate where there is a Will). By dying intestate, a person’s decision-making is taken out of their control and is given to the probate judge who applies the applicable statutes and case law in making decisions. In addition to loss of control when one dies intestate, failing to have a Will can increase the cost of the probate since additional steps are required in order to open and administer the probate.

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