Learn how trusts can protect your heirs' inheritance from your family fighting over inheritance and creditors, as well as safeguard your family's financial future.
One of the most common misconceptions in estate planning is the belief that having a surviving spouse automatically eliminates the need for probate. Unfortunately, this is not the case. Even when a spouse is still living, probate may be necessary—especially when a person’s estate consists of assets held solely in their name or when the estate plan relies solely on a will.
Let’s break this down in a way that’s clear and easy to understand, especially for families in Jacksonville seeking peace of mind through proper estate planning.
If My Deceased Spouse Had a Will, Can I Avoid Probate?
As Probate Lawyer Bill O’Leary explains in the following video, having a will in Florida does not ensure that your assets avoid probate upon your death. In fact, in many situations, having a will alone is almost going to guarantee probate.
What Is Probate and Why Might It Still Be Required for an Estate with a Surviving Spouse?
Probate is a legal process that takes place after someone dies. It involves validating the will, identifying and inventorying the deceased’s property, paying debts and taxes, and distributing the remaining property as the will (or state law if there is no will) directs.
Even if there is a surviving spouse, probate is often still required if:
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The deceased owned property or accounts solely in their name.
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No beneficiary was named on certain assets.
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Assets were not transferred into a trust.
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There was no comprehensive estate plan in place.
In Florida, if property is held in the deceased person’s name alone, it must pass through probate—even when that property is ultimately going to the surviving spouse. This means the court has to supervise the process, which can take anywhere from 9 to 15 months, sometimes longer, and comes with legal fees often based on a percentage of the estate’s value.
The Role of Wills and How They Relate to Probate
A will, or Last Will and Testament, is a legal document that expresses your wishes regarding the distribution of your assets after death. However, a will does not avoid probate. In fact, having a will often means you’re guaranteed to go through probate because it only governs “probate assets”—those not owned jointly, not in a trust, and not designated to a beneficiary.
Think of a will as instructions to the probate court. It tells the court who gets what, but the court still has to oversee the process. For families in Jacksonville, this often means a long and costly journey through Florida’s probate court system. Read more in our article, Wills, Trusts and Estate Planning: Facts You Should Know
What Makes Trusts a Better Option for Many Families?
This is where revocable living trusts come into play. Unlike wills, trusts avoid probate altogether—making life much easier for a surviving spouse and family.
What Is a Revocable Trust?
A revocable trust is a legal entity created to hold ownership of your assets. During your lifetime, you control the trust and can change or revoke it as needed. Upon death or incapacity, a successor trustee takes over to manage or distribute the assets according to your instructions—without the need for court involvement.
How Does a Trust Help a Surviving Spouse?
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Avoids probate: Assets in a trust are not subject to probate because the trust—not the individual—legally owns them.
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Immediate access: The surviving spouse can access funds or property without waiting months for the court’s approval.
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Privacy: Unlike probate, which is a public court process, trusts maintain your family’s privacy.
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Flexibility and control: You can customize terms to support your spouse during their lifetime while preserving assets for children or other heirs later.
Many families in Jacksonville find that a trust brings clarity, comfort, and control—especially when children from previous marriages are involved or when protecting an inheritance from creditors or divorce is a concern.
Comparing Wills vs. Trusts: Key Differences
| Feature | Will | Trust |
|---|---|---|
| Goes Through Probate? | Yes | No |
| Becomes Public Record? | Yes | No |
| Effective When? | After Death | Immediately upon signing |
| Helps in Incapacity? | No | Yes |
| Cost Over Time | Probate fees (3–5% of value of estate assets) | Setup cost but fewer future expenses |
| Control Over Distribution | Limited | Highly customizable |
Wills may be better than having nothing at all, but they are not enough to truly protect your family from the burden of court procedures.
The Jacksonville Advantage: Wills and Trusts Tailored to You
At Legacy Planning Law Group, we know that no two families are the same. That’s why we don’t offer cookie-cutter solutions. Instead, we help you create a customized estate plan that reflects your unique goals and family dynamics.
Jacksonville families trust us to make the process easy, understandable, and personalized. Whether you’re looking to update an old will, create a new trust, or ensure your spouse won’t face legal headaches after you’re gone, we’re here to guide you every step of the way.
If you’re wondering whether probate is required with a surviving spouse, the answer is: probably, unless your assets are properly planned with tools like a trust. A well-designed revocable trust not only avoids probate—it also brings lasting peace of mind and preserves your legacy for the ones you love most. Schedule a Discovery Call with Team Legacy to learn how we can help you protect your spouse and family from the headache and difficulties of probate.
Reference: The American College of Trust and Estate Counsel (ACTEC) (Apr 11, 2019) “How Does a Revocable Trust Avoid Probate?”
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