Lehigh Acres, FL asked in Estate Planning and Real Estate Law for Florida

Q: Do you have to file a will in Fl? Everything is left to the husband/wife. House & car is paid off.

Does probate need to get involved!?

4 Lawyer Answers
Carol Larmond Grant
Carol Larmond Grant
Answered
  • Estate Planning Lawyer
  • Davie, FL
  • Licensed in Florida

A: My condolences to you and your family.

Under Florida law, a Will must be filed 10 days after death. Filing a Will does not mean there has to be a probate administration. I am not sure what you mean when you say "everything is left to the husband/wife." If title to the property is jointly held with the husband/wife or if husband/wife is a beneficiary then probate is no need. Of course, if any property is held in the name of the person who died then probate is likely necessary.

Please contact a reputable attorney for further clarification.

Phillip William Gunthert agrees with this answer

Bruce Alexander Minnick
Bruce Alexander Minnick
Answered
  • Estate Planning Lawyer
  • Tallahassee, FL
  • Licensed in Florida

A: Just to be clear: Florida law does not REQUIRE Floridians to have a Will, and most Floridians do not have one. Nor is there any penalty for filing a Will within 10 days after a person dies in Florida, probably because in most cases it takes the family at least ten days or longer to make funeral arrangements and bury their loved one.

Turning to your other questions, whether or not Probate is needed depends completely on whether the decedent had any assets in their name ONLY; just because a Will might say "my house goes to my son Johnnie" does not make that happen automatically.

In short, talk about this with a competent experienced Florida lawyer before doing anything.

Phillip William Gunthert agrees with this answer

Jody  Strauss
PREMIUM
Jody Strauss
Answered
  • Estate Planning Lawyer
  • Miami, FL
  • Licensed in Florida

A: It really depends on how assets are titled. As an example, if the husband and wife co-own the house as Tenants-by-the-Entirety OR Joint Tenants with Rights of Survivorship, then when one passes away, title automatically passes to the surviving spouse (i.e. no need to probate the house).

If all financial accounts, life insurance policies, are either jointly owned or list the surviving spouse as the "pay on death beneficiary" - then those accounts would also automatically pass to the surviving spouse (i.e. no need to probate those appropriately named financial accounts).

But if any asset is only owned by the deceased spouse (without a co-owner or POD beneficiary listed) then a probate WOULD be necessary and the Will would need to be filed with the probate court.

Phillip William Gunthert agrees with this answer

Phillip William Gunthert
Phillip William Gunthert
Answered
  • Estate Planning Lawyer
  • Orlando, FL
  • Licensed in Florida

A: Yes, you have an affirmative duty to file any Will with the clerk of the court in the county where the deceased person was a domiciled resident (where their Homestead is located). The Florida Statute says you must do this within 10 days, no one will hold you to that timeline. As far as requiring an actual probate, there is no such obligation whatsoever. A probate is needed when there are assets in the deceased person's name alone and cannot be transferred via any other means (pay on death, transfer on death, named beneficiary, joint account owner, rights of survivorship on a deed, etc.). I would encourage you to speak with a Florida Probate Attorney and determine, what, if anything, needs to be probated and what type of probate, if any, would be required. A Florida Probate Attorney can specifically answer your questions and guide you through the process, in most instances, an attorney is required anyway, especially if it is a Formal Probate, but even in a Summary Administration in most instances so that you do not make any mistakes or overlook anything you may be entitled to related to probate rules. You need to review each asset and see how it transfers to you outside of probate, if at all, in many instances it may be as easy as recording the death certificate and filling out some paperwork to accomplish the transfer.

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