Probate and Estate Administration
Probate in Florida
Probate is the court process through which a deceased person’s (decedent) assets are transferred to his or her heirs or beneficiaries. A Personal Representative is typically appointed, who identifies and gathers the assets of the decedent, pays the decedent’s lawful debts, and then distributes the decedent’s assets. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration.
Assets that must be probated
Assets that are required to be probated are those assets that were owned in the decedent’s sole name at death, or which were owned by decedent and another person or entity without rights of survivorship or payable on death designation.
Examples of those that need probate are as follows:
- A bank account or a stock brokerage account in the sole name of a decedent are probate assets, but the same kind of owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
- A life insurance policy, annuity contract or individual retirement account that has a beneficiary designation identifying a specific beneficiary is not a probate asset, but such an asset payable to the decedent’s estate is a probate asset.
- Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
- Property owned by spouses as tenants by the entirety is not a probate asset when one spouse dies, but goes automatically to the surviving spouse. However, if the surviving spouse then dies without proper estate planning, such property would then require probate of the surviving spouse’s probatable assets.
Does a will avoid probate?
A popular misconception is that a valid Florida Will avoids probate but that is not correct. As stated above, probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those who are to receive them under Florida intestacy statutes.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed. Equally important is that probate will bar creditor’s claims made after the probate process has been properly closed.
What constitutes a valid will under Florida Law?
According to Florida law, a valid will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.
If someone dies without a will do the assets go to the state of Florida?
Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are those who are related to the decedent and described in the Florida statute governing distribution of the probate assets of a decedent who died without a will.
