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Understanding The Florida Probate Process


The death of a family member is often a stressful and confusing time for the survivors. Aside from having to deal with the loss itself and the accompanying burial and funeral, there are numerous legal issues, which together will be referred to here as “probate”.

Probate is often misunderstood.  But here are the basics.

Identifying Probate Assets

A probate asset is anything owned in the decedent’s sole name at the time of  death. This can include bank accounts, real estate,  or even money owed to the decedent. For example, if you co-own any property with your spouse as tenants by the entirety, that is not considered a probate asset, as your spouse automatically assumes sole ownership upon your death. Similarly, any asset that is titled as “payable on death” to a beneficiary, such as a bank account, is excluded from your probate estate.

Life insurance proceeds, 401(k) plans and IRAs that have beneficiaries designated will not require probate.

When Is Probate Necessary? And What Is Involved?

Probate is actually the process of transferring assets upon the decedent’s death. So if there are no probate assets, there is consequently no need for probate. And even if there are some probate assets, a formal probate administration may still not be necessary.

For example, when the probate estate is small–i.e., it is worth less than $75,000–aside from certain property and a Florida homestead, Florida provides for a simplified probate process that involves filing an affidavit. The affidavit must describe the probate assets and identify who inherits them. If the decedent had any final bills, they must also be paid from the available probate assets.

For larger estates, a more formal probate is typically required. This involves having a Florida circuit court judge appoint a personal representative to oversee the probate estate. The personal representative has several responsibilities: gathering the probate assets, identifying and notifying any creditors of the decedent’s death, paying any valid expenses and claims against the estate, filing necessary tax returns, distributing assets to beneficiaries, and finally closing the estate by filing an accounting with the court.

Does It Matter If the Decedent Left a Will?

One common misconception about probate is that it is only necessary when the decedent left a will. In fact, the absence of a will does not negate the potential need for probate. Florida law provides for the probate of what are called intestate estates, i.e., estates where there is no will. If there is a will, however, it will express the decedent’s wishes regarding certain probate matters, including who should serve as personal representative and who are the beneficiaries of the estate.

Other Ways to Distribute Assets

Florida law allows distribution of certain assets without filing a probate.  A skilled probate lawyer will help find the most streamlined process for your particular circumstance

If you have any questions or concerns regarding the probate process and need to consult with an experienced Tampa estate planning attorney, contact Older Lundy Koch & Martino, today.

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