Overview of Probate in Florida

If you’re currently exploring estate planning options or recently had a loved one pass away, you need to familiarize yourself with the probate process in Florida.

What is Probate?

Probate is the legal process whereby assets are identified and gathered on behalf of a deceased individual. It’s important to note that this is a court-supervised process. Once assets are gathered, the court makes the determination of paying off (or down) the decedent’s debts before distributing any remaining assets to listed beneficiaries. The specifics of probate are listed in the Florida Probate Code, Chapter 731 of the Florida Statutes, while the rules regarding proceedings are covered under Florida Probate Rules, Part I and II. Probate is necessary whether the decedent left a will or died intestate (without a will).

Types of Probate

Under Florida law, there are two types of probate: formal and summary administration. There is also a non-supervised option called “Disposition of Personal Property without Administrator,” and it only applies in very limited situations where there is only personal property left behind. Summary Administration in Florida is only available for small estates that don’t exceed $75,000 in value. This excludes a primary home that qualifies under a homestead valuation. If someone passed away more than two years ago, the estate will qualify for Summary Administration no matter how much the estate is valued at.

What Type of Assets are Subject to Probate?

Any assets that the decedent owned in his own name, or with one or more co-owners, are typically what have to go through probate before taking possession. Assets that are often seen in probate matters include:

• Real estate
• Bank and investment accounts
• Life insurance policies
• Retirement accounts

However, it’s important to note there are exceptions to each of these, which is why it’s important to retain a skilled Florida probate and estate planning attorney. For example, real estate titled as joint tenancy with rights of survivorship are not subject to probate. This also applies to life insurance policies that request payout to a specific beneficiary or bank accounts that are transferable upon death or held jointly with right of survivorship.

If Decedent Dies Intestate

If there is no valid will on file, it is typically referred to as “intestate.”  Although there is no valid will that dictates who gets what, it doesn’t automatically mean the estate will be turned over to the state of Florida. If there are valid heirs out there, the estate is transferred in order dictated by Florida Statutes Chapter 732. For example, a person who dies and leaves behind a wife, but no other valid living descendants, will see their estate go to the wife.

Why Probate is Important

Probate is a critical process wherein the court will determine the will’s validity. This is especially important when you have heirs fighting over assets or someone is claiming that the will presented is not valid. If you have a loved one who recently passed away and you need to prepare for probate, contact the Law Offices of Schwartz | White. Combined, our attorneys have over 50 years of experience in family law and estate planning matters. Contact our Boca Raton office at 561-391-9943 to schedule a consultation.

Resources:

flsenate.gov/Laws/Statutes/2012/735.201

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0731/0731ContentsIndex.html&StatuteYear=2016&Title=-%3E2016-%3EChapter%20731