This is one of the most common misconceptions I encounter after nearly 30 years of estate planning practice.
People assume that having a will means their family avoids probate. It does not. A will tells the probate court what to do — it does not tell the probate court to stay out of it.
What a Will Actually Does
A will is a legal document that names your beneficiaries, appoints a personal representative (sometimes called an executor), and gives instructions for how your assets should be distributed. Those are all important things.
But here is what a will does not do: it does not transfer your assets automatically at death. It does not bypass the court. It does not keep your affairs private. And it does not protect your family from the costs and delays of the probate process.
For any of that to happen, the will must first be submitted to the probate court — which opens the very process most people are trying to avoid.
When Is Probate Required in Florida?
In Florida, probate is required whenever a person dies owning assets that are titled solely in their own name with no named beneficiary. This includes real estate, bank accounts, investment accounts, vehicles, and personal property.
Florida does have a simplified “summary administration” process for smaller estates, but it still involves court filings and attorney involvement. Most homeowners do not qualify.
When Is Probate Required in Minnesota?
Minnesota adopted the Uniform Probate Code and has both formal and informal probate procedures. Informal probate is somewhat less burdensome — but it is still a court-supervised process with deadlines, creditor notifications, and a final accounting.
Like Florida, Minnesota has a simplified process for very small estates. But if you own a home and have meaningful savings, you almost certainly do not qualify.
What Actually Avoids Probate?
A properly funded revocable living trust avoids probate entirely. When assets are titled in the name of your trust, they transfer automatically to your beneficiaries at death — without court involvement, without mandatory fees, and without the public record that probate creates.
Other tools that can avoid probate for specific assets include beneficiary designations on retirement accounts and life insurance, jointly titled property with right of survivorship, and — in Minnesota — a Transfer on Death Deed for real estate. But none of these alone constitutes a complete estate plan.
The Bottom Line
If you have a will and nothing else, your estate will almost certainly go through probate. The question is not whether your family will face that process — it is how much it will cost them, how long it will take, and how much of your private financial life will become a public record.
For a full breakdown of the seven biggest misconceptions families carry into estate planning, see our pillar article: 7 Common Myths About Wills vs. Trusts.
Ready to Talk Through Your Situation?
Call us today at (941) 909-4644 for our Sarasota County, Florida office or at (763) 420-5087 for our Minnetonka, Minnesota office to schedule your consultation. Or you can fill out the contact form on this page and a member of our team will reach out to you.
The right plan is not the one that sounds simplest. It is the one that actually protects your family.
Join us in my upcoming masterclass where I reveal strategies I use with my private clients to help avoid probate, save on taxes, protect the money they leave for their kids in the event they get divorced, and much more. Click here to register.
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About the Author Chuck Roulet is an estate planning and elder law attorney with nearly 30 years of experience, licensed in both Minnesota and Florida. He is the founding attorney of Roulet Law Firm, P.A., with offices in Minnetonka, MN and Venice, FL. He has been featured in USA Today and other national media, and is the author of The Florida Snowbird Guide. |
Legal Disclaimer: This page is for general informational purposes only and does not constitute legal advice. Laws vary by state and individual circumstances differ. Please consult a licensed attorney in your state for advice specific to your situation. Roulet Law Firm, P.A. is licensed to practice law in Minnesota and Florida.
