The Probate Process
Probate is the court process to distribute assets and pay liabilities of a deceased person (in legal terms, the “decedent”). The personal representative of the decedent represents the decedent during this process, and it is strongly recommended that each personal representative retain experienced legal counsel to handle the probate process to ensure accuracy, efficiency and the proper administration of the decedent’s wishes.
Under Florida law, there are four types of probate administration. The two most common are “formal administration” and “summary administration.” A third type, called “disposition of personal property without administration,” is available for very small estates that satisfy certain conditions. And the fourth type, called “ancillary administration,” is for property outside of Florida and is initiated in the state in which the property is located. More of the differences between the four types of administration will be discussed in our next article.
Probate is necessary only for certain of a decedent’s assets, but probate is required whether or not a decedent had a will. It is noteworthy that the probate process can be much simpler and less expensive when a decedent has a valid will. In any event, all assets owned by a decedent at death that lack a means for automatic transfer of ownership are considered probate assets. Common probate assets include real property (unless it is the homestead of the decedent), motor vehicles, and bank accounts. Assets that are commonly excluded from probate because they transfer automatically as a result of a decedent’s death are financial accounts with “transfer on death” designations and real property that is held as a joint tenancy with the right of survivorship.
The personal representative of the decedent is charged with distributing the decedent’s probate assets to the decedent’s beneficiaries and for paying the decedent’s creditors. However, in order for the beneficiary of a decedent’s probate asset to obtain legal ownership of a particular asset, the probate process must be completed. For Florida residents, a probate case is initiated in the county where the decedent lived at the time of his or her death.
The Florida Probate Code and Florida Probate Rules govern the probate process and can be very complicated in their application. Throughout the probate process, certain steps must be completed within statutorily required time frames. If a particular step is accidentally overlooked or completed with errors, or if an important deadline is missed, it can leave the decedent’s estate, or the beneficiaries of the decedent’s estate, open to litigation for years to come and it can result in a complete waiver of a valuable right.
If you are facing any issue related to any probate matter, please call us immediately. We are always here when you need us.