Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
Florida law establishes three types of probate administration:
- Formal Administration
- Summary Administration
Florida law also establishes a nonadministration proceedings called “Disposition of Personal Property Without Administration.”
Why is Probate Necessary?
Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.
What is a Will?
A will is a writing, sign by the decedent and witnesses, that meets formal requirements set forth by Florida law. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee.
To the extent a will properly devises probate assets and designates a personal representative, the will controls over the automatic provisions set forth under Florida law. In the absence of a valid will, of it the will fails in either respect, Florida law designates the beneficiaries and designates the way to select the personal representative.
What are Probate Assets?
Generally, probate assets are those assets in the decedent’s sole name at death or otherwise solely owned by the decedent and which contain no provision for automatic succession of ownership at death. For example:
– a bank account in the sole of the decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
– a life insurance policy, annuity or individual retirement account that is payable to specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset;
– real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
– property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative.
The Law Office of Michael D. Weinstock, P.A. handles formal and summary administration probate cases throughout the State of Florida and offers FREE consultations for probate matters. Please contact our office via email at [email protected], telephone at 850-999-7497 or text at 850-999-7497 to discuss your probate case today.