How to Determine if Probate is Needed


We’re diving into the topic of probate administration in Florida. But before determining if probate is required, let’s first understand what probate is. 

How to Determine if Probate is Needed | Florida Estate Planning & Probate Lawyer


What is Probate?  

Probate is the court process for distributing someone’s property to their beneficiaries after they’ve passed away. It’s important to emphasize that probate is not always necessary; its requirement depends on how a specific asset is owned and titled. While probate can be time-consuming and expensive, there are ways to avoid it through various estate planning tools. 

When is Probate Necessary?  

Probate becomes necessary when money or property doesn’t have an automatic way of reaching the intended beneficiary. Stated the opposite way, it is not needed when assets pass automatically to the beneficiary through other means. 

The Role of a Will 

Having a will won’t keep you out of probate; instead, the will actually controls the probate process. The will’s instructions become irrelevant if an asset doesn’t require probate. To better illustrate, let’s explore how probate applies to different types of assets, focusing on bank accounts and real estate. 

Probate and Real Estate 

Real estate ownership can take various forms, such as tenants by the entirety (for married couples), joint tenants with rights of survivorship, tenants in common, and individual ownership. How real estate is titled determines whether probate is necessary. Individually held property will be subject to probate upon the owner’s death. Whether the jointly owned property will have to go through the probate process depends on how the jointly owned property is titled between the co-owners. 

Probate and Bank Accounts 

Similarly, the need for probate with bank accounts depends on the account’s ownership and whether a beneficiary is designated. Joint accounts often avoid probate, as the surviving account holder automatically inherits the funds. However, individual accounts without a designated beneficiary may require probate. 

Examples to Illustrate 
  • Example 1: I have a joint checking account with my child. Does it need probate? No. If I pass away, the account avoids probate and becomes the sole property of the other joint owner, my child.  
  • Example 2: I have a savings account in my sole name. Does it need probate when I die? It depends. If there is no designated beneficiary on the account, then yes. If I’ve named a beneficiary on the account, it will go directly to that person, and probate is not required.  
  • Example 3: My spouse and I own our home jointly as a married couple. If I pass away, the property will not need to go through probate because we own it as tenants by the entirety, and it passes 100% to my spouse upon my death.  
  • Example 4: My brother and I own a vacation home in Florida. Is the vacation home subject to the probate process if something happens to me? Again, it depends. If we own the home as joint tenants with rights of survivorship, then it avoids probate and passes to my brother as the other co-owner. If, instead, we owned it as tenants in common, my 50% interest in the house must go through the probate process to be transferred to my beneficiaries. 
  • Example 5: I am a single person, and I bought a home in my sole name. Will my property go through probate if I die? Yes, it’s owned in my individual name. 
  • Example 6: I am married, and I bought a home in my name only (my spouse’s name is not on the title with me). When I pass away, doesn’t the property go to my spouse because we’re married? No! It’s still owned in my individual name, and it will still need to go through probate even if I’m married.  

Understanding when probate is necessary is crucial for effective estate planning. If you have questions or need assistance navigating the probate process in Florida, don’t hesitate to contact us at SJF Law Group. Explore our website for valuable resources, blogs, and probate and estate planning articles. Feel free to send us an email or give us a call – our probate lawyers are here to help you ensure your affairs are in order. 

Get Our Free Probate Guides

We’ve developed two informative guides to assist individuals in navigating the probate process in Florida. Access our visual flowchart for a clear summary to determine if probate is necessary for your circumstances. Additionally, utilize our straightforward checklist if you’re uncertain where to begin with probate administration.

About Lauren Burns, Esq. 

Lauren Burns is a Senior Attorney at SJF Law Group specializing in estate planning, probate, and trust administration. After completing her psychology degree from Florida State University, Lauren pursued her J.D. degree, graduating with honors from Nova Southeastern University Shepard Broad College of Law. Demonstrating her commitment to client service, Lauren further honed her skills by earning an L.L.M. degree in Estate Planning from the University of Miami early in her legal career.  

Experienced Probate Lawyers in Florida 

At SJF Law Group, we expertly guide individuals through the complex probate process and capably handle all aspects of the creation, administration, and settlement of estates and trusts. We work hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. When you work with the probate and estate planning attorneys at SJF Law Group, you get more than just an estate plan: you get peace of mind. 

Our experienced Fort Lauderdale probate lawyers help clients in Broward, Miami-Dade, and Palm Beach County, FL. We are also pleased to offer the options of both in-person and virtual appointments throughout Florida to make our services accessible no matter where you are located.

Contact us here or email us at: [email protected]. 

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