Kristin Jackson
At 83 years old, single, and on a fixed income, I own very little, a house, a car, a bank account, and nothing more. My family, friends, and neighbors constantly badger me about creating a last will to avoid probate and making my beneficiaries pay thousands of dollars to retrieve what little I own. Q: What is probate, and do I need a will?
A: Let’s begin with probate. Probate means “prove the will” and is the legal process by which a court appoints an executor or personal representative to manage your affairs. The designated person will pay your debts and distribute your assets to your beneficiaries according to your wishes as outlined in your will. If there is no process to pass your assets to beneficiaries, then probate will be required.
Consider the assets you described; you can pass them to your beneficiaries without a will.
- House – Change the deed of your home by transferring your property to one or multiple beneficiaries and retain the ability to live on the property for the rest of your life, known as an Enhanced Life Estate Deed. You can still change your mind, sell, refinance, obtain a reverse mortgage, or do whatever you want during your lifetime.
Upon your death, the heir(s) you name on the deed receive full ownership without any need for probate. If you have more than one property, or a timeshare, you can retitle each.
- Bank Accounts – Have your banks name beneficiaries on your accounts to ensure account assets pass on to them upon your death, known as a POD or TOD, payable on death or transfer on death.
- Vehicles or Mobile Homes – Florida Statutes Section 319.28 allows an application for a certificate of title of a motor vehicle to be made by an heir of a previous owner who died intestate, meaning without a will, without any need for probate. The applicant must file with the department of motor vehicles (DMV) an affidavit that the estate is not indebted and that surviving heirs collectively agree among themselves on the division of the estate. The DMV form for a certificate of title includes a section on the Application For Certificate Of Title With/Without Registration Intestate (without a will). If your loved one owed money on the vehicle, either the bank holding the title or the DMV may require probate.
Do you need a will to avoid probate? Not necessarily, but never rely upon family, friends, or neighbors for legal advice unless they are lawyers. There are advantages to having a will rather than no estate planning whatsoever. Before you make a decision, it is wise to seek the advice of an estate planning attorney to explain the benefits of wills, trusts, and probate and how to pass your assets without probate to your beneficiaries.
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