Assets under Wills: Does a Will Control All of My Property?
By: Barry E. Haimo, Esq.
November 28, 2021
BARRY HAIMO: In Florida, a will controls all of the property in your name upon your death. This may include real property, personal property, stocks, bonds—anything that you own that is in your name will be controlled by that will, absent other estate planning that you’ve done.
A “last will and testament”—commonly shortened to just “will”—is a legal document that expresses your last wishes. Among other things, a will can dictate your funeral preparations, name a personal representative for your estate, and name a guardian for your children.
However, a will’s most widely known ability is controlling where your property goes when you die. As mentioned above, in Florida, all of the property that is in your name is controlled by your will. Specifically, the terms laid out in the will control all of the property you own at your time of death.
That being said, there are some exceptions.
Strictly speaking, all of your property that is subject to review and admission in probate court is controlled by your will. These are the courts that will review your estate to ensure that your property is transferred legally to your heirs. This includes almost all of the different kinds of property a person can own, including houses, cars, and money.
Your personal possessions, as well as any vehicles or real estate that have your name on the title, can all be controlled by your will. If you want, everything that you own can be passed down to your heirs through your will.
What Is Not Controlled by My Will?
However, there are certain entities that you can control that are not subject to probate court. In other words, these are parts of your estate that are not passed on through your will.
For many people, a large part of estate planning is avoiding the probate process. Probate can be a long and expensive undertaking, and many people wish to spare their families the trouble. Certain estate planning techniques are designed to avoid probate—and thus will not be controlled by the will of the estate.
Joint-Ownership Properties. Certain types of property, if they are owned by two or more people, are not controlled by a will. If a jointly owned property has the right of survivorship, your portion will automatically transfer into the hands of the other owners.
Trusts. Assets that are held in a trust are not subject to probate. Instead, those assets are passed on through the terms of the trust. You still can decide who get this property when you die, but you would name that person through the terms of the trust—not though your last will and testament.
Accounts with Beneficiary Designations. Certain accounts allow you to designate a beneficiary to gain control of the assets therein when you die. This includes insurance policies, IRAs, retirement plans, and some bank accounts. You do not need to include these assets in your will, nor will they be subject to review by probate courts. Instead, the assets in these accounts will pass directly to the named beneficiary after you die rather than being controlled by your will.
Estate planning can be a complicated and confusing process—but it is still very important. Contact an expert estate planning attorney to ensure that your property ends up in the right hands.
Originally published 05/18/2015. Updated 11/28/2021.
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