With rare exceptions, the vast majority of people know almost nothing about the probate law and procedures. This area of the law is, understandably, rarely depicted in popular films, fiction, and television. What little experience or understanding people have with probate is also often unfortunately clouded by a variety of popular myths and misconceptions.
Let’s take a little time to shed some light some of the more popular probate myths.
Myth 1. There will be a reading of the will.
The reading of the will is one of the few windows into the world of probate law regularly portrayed in fiction. Unfortunately, this all-too-standard image is almost entirely fictionalized.
If you write a last will and testament, there will not be a time when your attorney or representative assembles your heirs in a room to read the terms of the document. These readings of the will, though perhaps more common in days when literacy rates were lower and the mail was less reliable, never happen today. Once you die, your beneficiaries will each receive a copy of the will. Even if they don’t, wills become public documents once someone submits them to a probate court, meaning that anyone who wishes to can inspect them at their leisure.
Ms. 2. Making a will means I don’t have to go through probate.
Probate is, in a nutshell, the collection of laws that apply to property you leave behind after you die. The property you leave behind is collectively referred to as your estate. So, after you’re gone, your estate will have to be transferred to new owners. If you make a last will and testament, you can choose who those new owners will be.
Unfortunately, the idea that a will somehow avoids probate is entirely false. All wills have to comply with state law. After you die, a court must determine if the document you intended as your will complies with those laws. In Florida, as with all other states, someone will have to submit your will to a probate court in order to begin the probate process. In other words, every will has to be probated.
Myth 3. I can avoid probate if I have a revocable living trust.
This myth is more of a half-truth. When you create a revocable living trust, you create a legal entity that can own property. If you use it to own your individual property, that property can avoid probate because the trust can survive your death.
Unfortunately, having a living trust in place is only the first step. To avoid probate, you must ensure that you successfully transfer all of your property to the living trust. If you fail to do so, the property left out has to go through probate.