In today’s post “Probate Will: What Happens If You Don’t Probate a Will?” we are going to take a look at the probate process again. This time, we are going to look specifically at what happens if you don’t file a will with the probate court.

Probate Will: What Happens If You Don’t Probate a Will?

In the state of Florida, all estates do not have to go through the probate process, however, the will of the deceased does have to be filed with the probate court. If the deceased person does not have a will at their time of death, you still have to contact the probate court and file a petition to probate the estate of the deceased person.

It’s interesting to note here that even if you have a relatively small estate that does not have to go through the full probate process, the court still has to be notified of the death of the estate owner.

Now, what happens if you don’t notify the court of the death of the estate owner or file for probate?

Florida Will Filing

In Florida, the person who has possession of the will of the deceased has ten days to file the will with the court.

If the person in possession of the will does not file it with the court, anyone with an interest in the estate can file for a court order that forces the person in possession of the will to file it with the court. If the person still refuses to file the will, they will be held in contempt of court.

It is also important to note that if the person who has an interest in the estate does force the will holder to file if the interested party has lost money as a result of the delay, they can take the holder of the will to court for financial damages.

If there are no other interested parties and the will is still not filed with the court, a few problems exist.

  • There will be no legal record confirming the transfer of property to the beneficiary. This means, for example, that if a father dies and leaves his home to his son, the deed of that home will still have the name of the father on it. This means that the son has no legal possession of the property.
  • If someone comes out of the woodwork later down the road and they know that a will existed, they can approach the court and request that probate is initiated.
  • The beneficiaries of the estate will never be awarded the items that were left to them by the deceased and this can cause problems in the future.
  • Notifications about assets of the estate – such as mortgage payment booklets – may not be received by the person now living in the home of the deceased. This can mean that payments fall behind and the property eventually gets foreclosed on. Changing the ownership of the home legally, however, means that the new owner of the home is on record as the new owner and they will receive all communications.

What If There Is No Will?

If there is no will left when a person dies, probate must still be opened with the court. Since there will be no will to dictate who inherits what assets of the estate, the state of Florida observes the rules of intestate succession.

Intestate succession means that there is legal precedence for how the property of an estate is distributed among beneficiaries. This is done according to a very specific hierarchy.

NOLO.com has a very easy to understand chart that depicts the hierarchical distribution of assets of an intestate estate in the state of Florida, you can find that chart below.

If you die with: here’s what happens:
  • children but no spouse
  • children inherit everything
  • spouse but no descendants
  • spouse inherits everything
  • spouse and descendants from you and that spouse, and the spouse has no other descendants
  • spouse inherits everything
  • spouse and descendants from you and that spouse, and the spouse has descendants from another relationship
  • spouse inherits 1/2 of your intestate property
  • your descendants inherit 1/2 of your intestate property
  • spouse and descendants from you and someone other than that spouse
  • spouse inherits 1/2 of your intestate property
  • your descendants inherit 1/2 of your intestate property
  • parents but no spouse or descendants
  • parents inherit everything
  • siblings but no spouse, descendants, or parents
  • siblings inherit everything

Don’t Forget!

Also, make note that in Florida almost all probate processes require that you have a probate attorney to help you through the process. The exception to this rule is an estate that goes through disposition without administration – this is a type of distribution of assets for very small estates. This type of estate is one that has only personal property to be distributed or one that has only enough property that can be probated to cover the cost of the final expenses of the deceased person.

Do You Need Legal Help With The Probate Will Process?

If you need assistance from a probate attorney to help you with the probate process here in Florida, Weidner Law can help. Make an appointment with our office today by calling us at 727-954-8752.

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