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What Is Probate & When Is It Necessary In Florida?

In the midst of emotional grief following the passing of a loved one, family members are forced to deal with the confusing legal process called probate. Many people have misunderstandings on how this complex legal proceeding takes place.  Probate is a court-supervised process for identifying and gathering the assets of a decedent, paying the decedent’s debt and distributing the decedent’s assets to his or her beneficiaries. Once it is determined which assets are in fact the decedent’s, the assets will be used firstly to pay the cost of the probate proceeding, then to the decedent’s debt, and lastly to the beneficiaries.

Often people believe probate only concerns those who die without a Will. While it is true that those who die “intestate” (without a Will) must go through probate; the same is true for those who actually have a Will. The probate process simply ensures that the wishes and terms of the Will are carried out. Probate is necessary to pass ownership of the decedent’s assets to the beneficiaries.

Probate v. Non-Probate Assets

Probate assets are those assets that the decedent owns in his or her sole name at death, which then will pass to the beneficiary named in the decedent’s Will. Probate assets also include assets owned by the decedent and one or more co-owners, and which lack a provision for automatic succession of ownership at death. Such assets do not have a survivorship feature or beneficiary designation to control who receives the property when the decedent dies. Probate assets include:

  • Personal property;
  • Bank accounts and investment accounts solely owned by the decedent or jointly owned by another but lack a provision of transferability at death;
  • Life insurance policy, annuity contract or individual retirement payable to the decedent’s estate. NOTE: If payable to a specific beneficiary, then it is a non-probate asset;
  • Real estate titled in the sole name of the decedent or jointly owned with another as tenants in common. NOTE: If jointly owned with another as tenants with the right of survivorship, then it is a non-probate asset.

Non-probate assets are assets in which the title has already been transferred within the decedent’s lifetime or assets with a beneficiary designation. These assets are not probated, meaning they are not distributed according to the decedent’s Will. Rather the assets will pass directly to the designated beneficiary and are not subject to legal process. Typical non-probate assets can become probate assets if the named beneficiary designation is blank or the beneficiary is the decedent’s estate. It is important to note that a person’s Will does not control the distribution of non-probate assets. Instead, the assets are distributed to the joint tenant with survivorship rights or according to the beneficiary designation.

Intestacy

In those cases where the decedent dies without a valid will, or “intestate”, Florida intestacy laws will govern.  The decedent’s assets will be distributed to the decedent’s heirs in the following order:

  1. 100% of probate estate to surviving spouse, if decedent had no living descendants.
  2. 100% of probate estate to surviving spouse, if decedent and spouse have living descendants together and surviving spouse has no other living descendants who are not descendants of the decedent.
  3. 50% of probate estate to surviving spouse and 50% to decedent’s descendants, if decedent and surviving spouse have living descendants together and surviving spouse also has living descendants who are not descendants of decedent.
  4. 100% of probate estate equally divided amongst living descendants, if decedent died unmarried and with one or more descendants. If the descendant (i.e child) did not survive decedent, than the descendant’s descendants (i.e grandchild) will received the share.
  5. 100% of probate estate to decedent’s parents, if decedent died unmarried and with no living descendants.
  6. 100% of probate estate to decedent’s siblings, if decedent died unmarried with no living descendants, and no living parents.
  7. If decedent is not survived by any of the close relationship stated above, Florida’s intestacy law will pass decedent’s probate estate to other, more remote heirs.

Considering the complexity of the probate process in Florida, many families rely on probate attorneys to handle it on their behalf.  Fort Lauderdale Probate Attorney Steven A. Mason is available to help in just that capacity. Contact us today for a consultation.

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