Wills Are Not Automatic
I’ve lost track of the number of times I have heard someone say, “Oh, we don’t need to do a probate. Mom had a Will.” Somehow, this notion has become very commonplace, and it is just so wrong. I blame the movies. The rich relative dies, usually under mysterious circumstances, and all the family gathers in the lawyer’s mahogany-swaddled office to hear the Will read and discover who has inherited the family fortune. Our hero walks away a rich man, leaving his villainous relatives pea green with envy. This makes for lovely on-screen drama, but it is entirely fiction.
Firstly, it is very unusual in the State of Florida for a Last Will and Testament to be read out to one’s grieving relatives. I have never seen it done. Secondly, property does not transfer from a decedent (that’s lawyer-speak for “dead person”) to his relatives just because he had a Last Will and Testament. Wills are not automatic! When a person dies owning property, that property still has to be transferred to living people (or charities, trusts, favorite pets, etc.), and that is accomplished through a legal process known as probate*.
You may ask, then, why even have a Will? The purpose of a Last Will and Testament is to direct the probate court as to how the testator (lawyer-speak for “person who made the Will”) would like his or her assets to be distributed. If a person dies intestate (lawyer-speak for “without a Will”), Florida law dictates who must inherit that person’s assets, regardless of what the decedent may have wanted. A Last Will and Testament also tells the probate court who should be named as the decedent’s Personal Representative, which is the person in charge of handling the probate process and making sure the assets are distributed. A Last Will and Testament can also name a guardian for minor children; under Florida law, minor children, with some exceptions, will need a guardian to safeguard their inheritance for them until they come of age. In short, a Will expresses the wishes of the decedent and guides the probate process.
So, don’t believe everything you see in the movies. Money will not magically appear in your bank account just because Great Aunt Ida’s Will says it should. Wills are not automatic. If a person dies owning property, a probate will usually be needed to distribute that property, whether or not the person had a Will.
*There are ways to avoid probate: trusts, ladybird deeds, co-ownership, to name a few. But that’s a blog post unto itself.