The Florida Probate Process
The Florida probate process could be difficult or very simple, depending on the worth of the estate, whether the decedent has a will and trust, and whether the will is contested. Florida statutes provides for certain property to be exempt from probate, so some estates may not have to enter the probate process. Even if you think your relative’s estate does not have to go through the probate process, it is best to retain a probate attorney to be sure, so that you are not charged with any fees if it is found that you should have taken the estate through probate.
Intestate vs. Testate
If a person dies intestate – without a will – his or her estate must go through the probate process. If a person dies with a will and a trust, even if he or she has a larger estate, his or her heirs may still be able to avoid probate – or at least a lengthy probate process, depending on the type of trust the decedent filed and how that trust was drafted.
The probate process is usually easier if the decedent has a will and trust, even for larger estates, as long as someone doesn’t dispute the will. Even those who don’t think they own enough to warrant a will or a trust should have an estate drafted. It will save your heirs a lot of money, time, stress and grief when it is time to distribute your assets to your loved ones.
Types of Probate Administration
Florida law provides for three types of probate administration:
- Formal administration,
- Summary administration, and
- Disposition of personal property without administration.
Disposition of personal property without administration only applies in certain circumstances. A probate attorney will be able to tell you if the decedent’s estate falls into this category. If it doesn’t, you must go through formal or summary administration.
An estate may use summary administration if the decedent has a will, but the will does not require administration of the estate as defined by Florida Statutes. The value of the estate cannot exceed $75,000 or the decedent has to have passed over two years prior to filing probate.
If a decedent had certain assets, the estate must go through probate. These assets include but are not limited to:
- Bank accounts only in the name of the decedent,
- Investment accounts only in the name of the decedent,
- Life insurance policies, individual retirement accounts or annuity contracts that are payable to the decedent’s estate, and
- Real estate that is in only the decedent’s name or in the decedent’s name with another person as tenants in common, unless that real estate is a homestead property.
If any of these assets have a provision for automatic succession of ownership upon the death of the owner, they may not have to go through probate. Part of setting up an estate is ensuring that probate assets, if possible, are set up to automatically go to a beneficiary.
Creditors of the decedent are entitled to certain non-exempt assets of the estate. Creditors may also include nursing homes. You can protect some assets from creditors by setting up a trust. Depending on your situation, your heirs may still have to take your estate through probate, however, a trust could potentially shorten or eliminate the probate process, since it could leave little to no assets for creditors, depending on the type of trust.
Your will should appoint a personal representative. This should be a person you trust to distribute your assets and to ensure that your estate is properly administered. The personal representative will work with the attorney and the court if your estate has to go through probate. This person is also in charge of paying creditors and other bills generated by the decedent prior to and after his or her death.
Contact Yardley Law
If you do not have a will or trust set up, contact our office for a consultation regarding your estate. Based on your circumstances, we will advise you how to set up your estate to best benefit your heirs. If a loved one just passed and you need to know if you have to go through the probate process, or if you know you must go through the probate process, contact Yardley Law to set up a consultation regarding your loved one’s estate.