What Property is Not Included in Probate?

Probate only applies to assets that were owned in the decedent’s sole name at death. The following are examples of probate assets and assets that pass outside of probate.

  • A bank account in the sole name of the decedent is a probate asset. However, a bank account owned by the decedent that is payable on death, transfer on death, or held jointly with rights of survivorship is not a probate asset and will pass outside of probate.
  • A life insurance policy or individual retirement account that is payable to a beneficiary is not a probate asset and will pass outside of probate. However, a life insurance policy or individual retirement account that is payable to the decedent’s estate is a probate asset.
  • Real estate titled in the sole name of the decedent is a probate asset. However, real estate titled in the name of the decedent and other persons as joint tenants with rights of survivorship is not a probate asset and will pass outside of probate.
  • Property owned by spouses as tenants by the entirety is not a probate asset when the first spouse passes away. Property held as tenants by the entirety automatically passes to the surviving spouse.

These examples are intended to be illustrative and do not include all situations.

Our law firm routinely represents clients in probate administration proceedings throughout the state of Florida and creates estate plans to carry out your wishes. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to schedule a free consultation.


Caveat Emptor: Do-It-Yourself Estate Planning- Part I

Caveat emptor, the Latin phrase for let the buyer beware, is an old saying has stood the test of time. A story in The Florida Bar News confirms the inadequacy and unreliability of do-it-yourself estate planning. To view the full article please click here.

In the article, a woman, Ann Aldrich, used an “E-Z Legal Form” to write her will.


  • Aldrich’s form will was properly witnessed and executed.
  • Aldrich’s form will specified that her property was to be left to her sister, and if her sister died first, then her property would go to her brother.
  • The sister died first and left property and money to Ms. Aldrich.
  • Aldrich attached a note to the form will stating that her brother should receive the inherited property, with some funds for a niece. Ms. Aldrich and her daughter signed the note.

The Problem with the Self-Drafted Will

  • Aldrich’s form will did not have any general devises or residuary clauses to control how her inheritance should be handled.
  • The Court found that the attached note was a legally ineffective testamentary instrument because it did not comply with the Florida Probate Code.

One Consequence of the Self-Drafted Will- Costly Litigation

When Ms. Aldrich passed away, her brother filed an action and claimed that he should get the entire estate, including the inheritance from the sister. He was met with opposition from two nieces. The nieces argued that Florida intestacy laws should apply to the inheritance because the form will did not mention or cover inheritances. Note: Intestate means a person died without a will. Florida intestacy laws determine who will inherit the decedent’s assets.

The Court’s Finding

The Florida Supreme Court found that Ms. Aldrich’s after-acquired property shall pass by intestacy. Applying Florida intestacy law to this case, Ms. Aldrich’s inheritance passes to her two nieces even though her note clearly stated that she wanted all of her “worldly possession” to pass to her brother.

Justice Barbara Pariente wrote a separate opinion to underscore what she saw as problems from using the simple will form. See the Court’s opinion at the following link: sc11-2147. 

The Moral of the Story- Caveat Emptor

You are own when you decide to write your own will using online software or pre-printed templates. Ms. Aldrich’s choice to use a commercial will, instead of hiring an attorney, prevented her wishes from being carried out. Her story highlights the dangers of using pre-printed forms and drafting a will without legal assistance.

Additionally, her choice sparked litigation that cost many times what she saved by using the generic form. The advice of an attorney may cost more but we advise you on the best way to protect your family and distribute your assets according to your wishes. We do more than just draft the document. As illustrated by this story, the ultimate cost of drafting your own will has the potential to surpass the cost of hiring a lawyer from the beginning. It is not worth it to learn the hard way and cause unnecessary headaches and legal expenses for your family.

Contact my office if you a Florida resident looking for estate planning or small business legal services.

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After you say “I do,” make a vow to say “I will” about planning your estate

Just married? Planning to be married? Congratulations! Estate planning is probably the last thing you want to do as a newlywed, but it is one of the smartest long-term decisions you can make. Planning your estate early on in the marriage will protect and care for your spouse. It can help avoid a host of potential issues and expenses down the road. Once you are married you should consider making a will, health care directives, and a power of attorney to appoint your new spouse. Once the babies start to arrive, your estate plan may need to be updated with trusts and guardians.

Newlywed vintage photo

Taking the time to sit down with your spouse and speak openly about your estate plans will ensure that, should the worst happen, your new family is prepared to handle the unexpected.

By beginning your life together with a sound estate plan, you not only help avoid potential issues and expenses in the future, but also gain the satisfaction of knowing you have provided a secure future for your new family.

If you already planned a wedding, planning for the future should be a breeze.

Call (407) 862-9449 or complete the Contact Form below to schedule a FREE ESTATE PLANNING ASSESSMENT! Mention this blog post to receive a special flat-rate for our Newlywed Estate Planning Package!

Abigail Edelstein, Esquire

Attorney & Counselor at Law


(407) 862-9449

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