What is Probate?

Probate Administration in Florida

What Is Probate and Why Does It Matter?

Probate and estate planning aren’t at the top of most people’s minds. Typically, that only happens with the death of a loved one. And then you wake up wondering about this legal thing called probate and what it means to you.

But by familiarizing yourself in advance, you can make informed decisions. Those decisions will ensure a smoother transition of assets and fewer complications when the time comes.

You should talk with a probate attorney near you to make the most informed decisions. They can provide the necessary guidance to make the process simple.

Let’s start with a better understanding of probate.

What is Probate?

Probate, also called estate administration, is a legal process for distributing an estate after someone passes away. It involves identifying assets left by the deceased and transferring those assets to the decedent’s beneficiaries.

During administration, creditors and others to whom the decedent owed money may present claims for payment against the estate. After creditor claims are addressed, the courts distribute the remaining estate assets to the beneficiaries.

If the decedent left a will, the court must first validate and admit it to probate. Then, the asset distribution follows the will’s terms. In the absence of a will, state intestacy laws dictate the distribution of assets.

Probate with a Will

The presence or absence of a will can significantly influence the probate process. The process is called a testate administration when a valid will is in place. The will typically specifies the distribution of the deceased’s assets. The will might also nominate a personal representative or executor to manage the estate.

Here are the key steps and considerations in Florida when probate involves a will:

  • Validation of the Will: The process begins by proving the will is valid. This involves filing the will with the Florida probate court and verifying that it complies with state laws.
  • Appointment of the Executor: The court appoints the executor named in the will to oversee the estate’s administration. If the will lacks an executor, the court will appoint someone else, typically a close family member.
  • Asset Distribution: The executor collects the deceased’s assets, pays debts and taxes, and distributes the remaining assets to the beneficiaries as directed by the will.

The advantage of having a will is that it gives the deceased control over estate distribution. Additionally, it can make the probate process smoother and more straightforward.

Probate without a Will

Intestate administration refers to a probate process without a valid will. In that case, courts distribute estate assets according to state laws, following Florida intestacy succession laws. Here’s what happens during intestate probate:

  • Appointment of an Administrator: Without a will-assigned executor, the court appoints an administrator to handle the estate based on whoever prefers an appointment under state law.
  • Determination of Heirs: The administrator must determine the legal heirs of the estate according to Florida’s intestacy laws. These laws prioritize spouses, children, and other family members in a specific order.
  • Asset Distribution: The administrator distributes the remaining assets after paying off debts and taxes. Heirs receive those assets based on their legal entitlements under state law. Unfortunately, the distribution scheme under state law might not align with the deceased’s desire.

The absence of a will generally complicates the process, requiring the support of a probate lawyer. Moreover, it can lead to disputes among potential heirs, especially in blended families or situations involving significant assets. It can also result in a distribution that might not align with the deceased’s wishes.

How Long Does Probate Take?

Probate duration varies widely depending on the complexity of the estate and the type of administration required. Generally, a simple estate undergoing summary administration can take a few months. However, more complicated estates requiring formal administration may take a year or more.

Types of Probate in Florida

Florida’s two primary types of probate administration are Formal Administration and Summary Administration. The size and complexity of the estate dictate which applies. Both require filing documents in Florida probate court. An estate probate attorney can help you with the filing.

  • Formal Administration: This process is standard for estates with assets exceeding $75,000, excluding exempt property. It often involves extensive court supervision to resolve issues and disputes.
  • Summary Administration: This simplified process applies if the estate’s total value is less than $75,000 or if the decedent has been deceased for over two years. It’s quicker and requires less court oversight.

Probate may not be necessary in some instances, for example, when assets transfer automatically upon death.

In Florida, you can structure certain assets, allowing them to bypass the probate process entirely. That helps streamline the estate distribution, reduces legal fees, and provides quicker access to assets for beneficiaries. The best way to start is by contacting an estate attorney near you to execute an estate plan.

Understanding which assets don’t require probate can also aid in effective estate planning. Here are some key asset types to help avoid probate in Florida.

Jointly Owned Property with Right of Survivorship

Properties held in joint tenancy with the right of survivorship automatically pass to the surviving owner when one owner dies. This transfer occurs outside of the probate process.

Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts

You can designate several financial accounts as payable-on-death (POD) or transfer-on-death (TOD). Examples include bank accounts and securities. Upon the account holder’s death, these accounts transfer directly to the named beneficiary without the need for probate. The beneficiary provides a death certificate and identification to the financial institution to gain control of the assets.

Retirement Accounts

Retirement accounts like IRAs and 401(k)s typically have designated beneficiaries. As a result, they transfer directly upon the account holder’s death without requiring probate.

Life Insurance Policies

Life insurance policies with a named beneficiary do not go through probate. The death benefit goes directly to the beneficiary upon the policyholder’s death, bypassing the probate process entirely. Beneficiaries can receive the funds quickly and without being subject to settling estate debts and taxes.

Living Trust

A living trust is a legal entity created to hold ownership of a person’s assets. A trustee distributes assets in the trust according to the terms of the trust without going through probate. This includes real estate, bank accounts, and personal property. Trusts are beneficial for those who wish to maintain privacy and control over the distribution of their assets.

Some annuities and pensions offer options to name beneficiaries. Similar to life insurance and retirement accounts, these financial products can bypass probate. Thus, the beneficiaries receive the payments directly.

Our firm offers a variety of free resources on probate. Download our probate guides and initial checklists to get started and become informed.

Our Plantation, FL, law office focuses on estate planning and serves Fort Lauderdale, Miami-Dade, and West Palm Beach County.

Our probate attorneys in Fort Lauderdale can help devise an estate plan to reduce the impact of probate. If you’re facing the process, our probate lawyers can help reduce the confusion, making it more straightforward.

We also offer remote, virtual appointments for clients throughout Florida.

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