Probate is typical (although not always necessary) in Florida when someone dies. If you’ve lost a loved one, you’re probably wondering what category of their assets is required to go through the probate process. The probate process guides property transfer from a decedent to the living persons entitled to them. The Florida Probate Rules determine appropriate parties to receive inheritances in Florida. The rules cover the required probate process in Florida, such as what assets go through probate, who can receive the assets, and how to go about the transfer process. You can contact a probate attorney here for expert guidance on how the laid-out rules apply to your particular case.
What is Probate?
Probate or estate administration is a court-monitored process that seeks to identify, authenticate, and transfer property belonging to a deceased person (also decedent in probate) to the rightful beneficiaries or family. Any property owned by a decedent at the time of their death is collectively termed the “estate.” An estate can comprise anything ranging from a life insurance policy, bank or investment account, real estate, vehicles, tools, guns, etc.,
Not All Assets go through Probate in Florida
The probate process can be complex and tiring in some situations, especially where good estate planning procedures were lacking (such as where the property was co-owned and there were no legal provisions for property transfer after death). However, it can be super easy when the deceased has a will in place and no contests among the listed beneficiaries. While the probate process sometimes involves a cumbersome court process that may delay property transfer, it’s still much better than scenarios like property going to non-intended people or beneficiaries fighting over ownership. This article will provide an illustrative definition of how assets are generally held to understand those that go through probate in Florida.
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- Probate Assets
Probate assets are those owned by a person in their sole name at the time of their death or co-owned with another person and lack a survivorship feature to enable automatic transition after their death. Such probate assets must go through probate administration in Florida. For instance, a bank or investment account attributed to the decedent’s sole name is a probate asset, while that payable to a beneficiary upon death is not. The same case applies to other properties.
- Joint Tenancy Property
Property co-owned with another person may be legally passed over directly to the surviving owner without probate or court. This is made possible courtesy of a binding legal relationship automatically created in such an arrangement called the “right of survivorship.”
- Beneficiary-Designated Accounts
According to Florida law, a payable on death designation can be established when forming savings accounts, checking accounts, retirement accounts, life insurance policies, and certificates of deposit. This enables a designated beneficiary to automatically take charge of a decedent’s designated estate after their death without needing a probate process.
- Revocable Living Trusts
Trust planning is a powerful estate planning tool and the most effective method for avoiding probate upon death. The grantor, both a trustee and a beneficiary, retains the right to cancel or review the trust anytime they are still alive. It involves appointing a “successor trustee” to distribute all the assets per the legal dictates of the revocable living trust upon the grantor’s death. This is done without the need for probate.
- Enhanced Life Estate Deeds
Enhanced Life Estate Deeds, also referred to as the Ladybird Deed, is an estate planning tool that allows one to transfer their property to another(others) within their lifetime (while they still maintain control) for an easier property transition after death. It’s one of the most effective ways to enable beneficiaries to skip the time-consuming and expensive probate process. A Florida lawyer in the 1980s created this deed, and Florida is one of the few states that allow it.
The probate process generally takes 4 to 8 months, depending on a specific case. Two types of probates are defined under Florida law; formal probate administration and summary probate administration. Under some circumstances, such as if the decedent didn’t have any assets in their individual name, estates don’t require them to go through a formal probate process. Summary probate administration is a more straightforward process that may be used in cases where the deceased leaves behind a few assets, usually not more than $75,000. If an estate does not qualify for a simpler probate administration, the regular formal probate administration (which is more complicated) is applied.
There is also a third process that doesn’t involve supervision by the court, referred to as the “Disposition of Personal Property Without Administration.” This process is uncommon and applies only in limited scenarios, such as reimbursement to someone who paid for the deceased’s final expenses. These final expenses include medical bills paid within 60 days of the decedent’s life and funeral expenses not exceeding $6,000.
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