will

How a Will Affects Probate in Florida

Wills and Probate

The Will plays a crucial role in the Probate process, acting as the main facilitator during Probate. Many people wrongly believe that having a will avoids probate. If the decedent died without having a Will, he or she died intestate, meaning that the Court will follow state statutory law to determine the disbursement of the Estate. Probate will be required whether or not the decedent has left a will since the laws of the State of Florida provide a “will” for those who chose not to make one through the intestacy statutes.

At that point, the fate of your estate is left to a set “Will” provided by the State of Florida based on intestacy statutes, which declare that a decedent without a Will shall have their assets distributed as previously determined by Florida statutes. Generally, intestacy statute process goes as follows: all of a decedent’s estate will go to their spouse (if married without children) or $60,000 will go to the spouse with the remainder of the estate split amongst the children (if married with children). The only way probate can be avoided is with a trust-based Estate plan in place.

If well planned, the Probate process does not have to be complicated or an unpleasant experience. The use of an Estate attorney can help drastically reduce the chances of a Will contest by constructing a Will that both, meets your needs, and abides by the laws of the state. For example, the concerns with the validity of a Will reach beyond the mere drafting of the Will. There are very specific requirements for the execution of the Will as well. So, while the actual language of a Will may be acceptable, a Court can still deem a Will invalid when contested if the proper procedural law was not followed.

Usually a Will contest occurs with large Estates when family members or heirs have conflicting interests. Each party in the Estate will then hire an attorney with the interested party bringing the claim as the plaintiff and the personal representative of the Estate as the defendant. The most common objections in a Will contest include the questioning of the decedent’s mental capacity at the time of the Will’s execution, if the decedent was under duress or undue influence, if the Will was forged, and if the Will meets the states formal procedural requirements such as was the Will properly drafted, signed, witnessed, etc.

Also, a potentially terrifying thought is that Probate litigation becomes public knowledge to anyone who wishes to attain details. Thus, Probate litigation is not only expensive, but also embarrassing for the family and all those involved with the Estate. Lastly and most importantly, if the plaintiff party succeeds in their suit, the decedent’s wishes are not fulfilled, which defeats the whole purpose of the Will.

For more information on successful Florida estate planning and probate techniques, please contact the South Florida law firm of Wild Felice & Partners, P.A. at 954-944-2855 or via email at info@wfplaw.com to schedule your free consultation. It’s a Wild world. Are you protected?