Brandon Business, Probate and Real Estate Law Blog

Brandon Business, Probate and Real Estate Law Blog

When is probate necessary?

by Jaimee B. Henbest, Esq. on 04/26/11

When a person dies, the family or loved ones are left to sort out the assets that the decedent owned.  When a person dies, many assets pass to beneficiaries by operation of law.  These assets do not need to be probated.  The only assets which need to be probated are only assets which do not pass directly to beneficiaries.  So how do you figure out which assets need to be probated?  In determining whether a probate is necessary, it is important to identify how the decedent titled his or her assets. 

Generally, assets that will need to go through probate are those that are only in the decedent's name alone.  For example, a boat which is titled in Aunt Marta's name alone when she died would likely go through probate.  On the flip side assets that have beneficiaries listed will likely not have to go through probate.  For example, Grandma Joan has an insurance policy and the beneficiaries of the insurance policy are her children, John and Jake.  Another way an asset would not require to go through probate is if a person included a Payable on Death or Transfer on Death beneficiary on an account.

When a person owns property (real property or personal property) with someone else it is important to look at the deed/account to determine how the property is titled to see if the property has to be probated.  There are several ways to hold property with another.  In Florida they are, tenancy by the entireties, joint tenant with right of survivorship or tenants in common.  With property held either by tenancy by the entireties or joint tenants with right of survivorship, when one of the owners dies, the property automatically passes to the survivor by operation of law.  However, if the title to the property is listed as tenants in common, each co-owner owns an undivided share in the property depending upon the number of co-owners.  If one of the co-owners dies, his or her share will pass through probate.
It is important to consult with an attorney to categorize the decedent's property. Some property can fall into gray areas and careful consideration of all the facts and applicable law is required to determine the status of the property.  For more information on probate please see our website or contact us to schedule an appointment.

Posted by Jaimee Henbest
Jaimee Henbest is an associate with the law firm of Rory B. Weiner, P.A.  Jaimee's practice areas include estate planning, probate and trust administration matters and real estate.


Is a "do it yourself" Will worth it?

by Jaimee B. Henbest, Esq. on 04/01/11

With the invention of the internet, the "do it yourself" craze began.  These days, you can find "do-it-yourself" articles on just about anything.  However, it is important to decide which types of things you can effectively do for yourself and those you should not.  Although a "do-it yourself" article on how to bake a Thanksgiving Dinner will probably be ok, using a do it yourself Will can have many undesired results.

Often individuals do not understand the consequences of the choices they make in drafting and signing their Will.  Typically the templates or examples you find online are fill in the blank and generic.  Additionally, the forms are not specific to the state you live in and do not take into account the law where you live. 

For example, a Florida Will must comply with the Florida Statute on Wills to be valid.  How you sign your Will in Florida can have significant impact on the result of your Will, if the Will is contested or submitted for probate.  If a Will does not have a proper self-proving affidavit, the work that must be done to prove the Will is authentic is increased which can cause the family to incur additional costs and delays in the probate process.  Additionally, when having a Will drafted in Florida, it is also important to know that Florida law places restrictions on certain things such as who can be the guardian of your children and who you can leave your homestead to.

You are drafting your Will because you want to ensure that your spouse, children and other relatives are properly taken care of and you want to prevent family infighting after you die.  It is important to make sure your Will is binding so your efforts are not for nothing.  Your family or those you leave behind will be left to deal with the results of your Florida Will or your other Florida estate planning documents.  It is important to get the documents right.  A Florida estate planning attorney can tailor your Will to plan for your specific circumstances and can put you on the right track to making sure that your Will is valid.  For more information on estate planning or how we can help you with your Florida Estate Plan see our website or send us an e-mail.

Posted by Jaimee Henbest
Jaimee Henbest is an associate with the law firm of Rory B. Weiner, P.A.  Jaimee's practice areas include estate planning, probate and trust administration matters and real estate.

Welcome to our blog!   At Rory B. Weiner, P.A., our law firm focuses on the legal needs and aspirations of small business owners and their families.  This blog was established to provide clients and site visitors with helpful information in the areas of business, real estate, estate planning and probate law.  If there are any particular subjects you would like us to discuss, please don’t hesitate to contact us via an e-mail.  

Rory B. Weiner, P.A.  is a  law office practicing Business Law, Civil Litigation, Real Estate Law, Closing Services, Short Sales, Probate and Wills & Trusts.  

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