When Probate is Required in Florida

If you have found yourself responsible for a loved one’s affairs, or are trying to prepare your own estate plan, you likely are considering a trip to the Florida probate court. Knowing when probate is required in Florida, and what you can do ahead of time to avoid it, can keep you and your family members from hassles once you can no longer manage your own affairs.

What is Probate Court?

The Florida probate court is responsible for overseeing the management of assets and affairs for people who cannot do so themselves. Much of the probate court’s time is spent overseeing the administration of estates after people have died with or without a will. This includes:

• Identification of a deceased person (decedent)’s assets
• Gathering and liquidating those assets
• Paying the decedent’s debts
• Distributing the decedent’s assets to his or her beneficiaries.

However, the probate court also oversees guardianships and conservatorships. These cases involve incapacitated individuals who are physically or mentally incapable of handling their own healthcare choices or financial affairs.

Is Probate Required if There is No Will?

Probate is about transferring ownership of a deceased person’s assets to their beneficiaries. It is required anytime a person dies with assets in his or her name only, whether or not the decedent had put together a Will directing how those assets should be distributed. Where there is a valid estate plan in place, the court oversees the process of “probating the Will” until the estate’s personal representative has paid all the estate’s expenses and distributed the assets to the beneficiaries according to the terms of the Will.

Where there is no Will, the probate court also has the obligation to identify the appropriate heirs through intestate succession. Once the heirs are identified, the distribution of the estate is essentially the same as where there is a Will. The only difference is that a Florida statute, instead of a Will, controls who receives the inheritance, and various steps in administration can be less efficient because there is no Will to specify exactly how they are to be handled.

How Does the Probate of a Will Work?

When you or your loved one files a petition to probate a Will, it starts a probate process called estate administration. Some smaller estates can be probated through a summary administration. This allows a Will to be probated and the assets distributed after certain paperwork is completed and notices have been sent to creditors and heirs.

Most estates in the Florida probate courts go through a longer, more complicated formal administration. This process includes:

• Appointing a personal representative (formerly called executor)
• Issuing Letters of Administration
• Notifying creditors
• Taking possession of the estate’s assets
• Inventorying the decedent’s assets and setting their value
• Collecting on debts owed to the deceased
• Objecting to or paying the creditors whose claims survive the decedent’s death
• Paying taxes and the decedent’s final expenses
• Distributing the assets to correct beneficiaries

What Can You Do to Avoid Probate Court?

If this probate process sounds like something you want to avoid for your loved ones after your death, there are certain steps you can take to reduce or avoid probate court. It is true that the formal administration process can take months or even more than a year after a decedent’s death. It is also a public process, completed in open court. That means many families do what they can to avoid probate court.

Remember, probate only applies to assets or interests that the decedent held solely in their own name at the time of their death. In many probate estates, this could include:

• The home they lived in
• Vehicles
• Furniture, heirlooms, and other personal property
• Bank accounts or investment accounts without proper beneficiary language
• Retirement accounts, insurance policies, and annuities contracts payable to the decedent’s estate
• Other property held only in their own name

However, there are a variety of ways to exclude those assets from the probate estate and avoid the probate court’s supervision, such as:

• Creating a revocable trust and transferring assets into that trust
• Transferring finances into an account held jointly with rights of survivorship
• Designating beneficiaries on insurance policies, retirement accounts, and annuities
• Transferring property to beneficiaries while still alive
• Holding real estate assets as joint tenants with rights of survivorship or as “tenants by the entirety” between spouses

Most of these options allow the assets to pass to the survivors automatically on the decedent’s death without needing to go through probate. However, there may be legal limits or practical considerations that should be addressed. That is why it is wise to review your entire estate plan with an experienced estate planning attorney before you start transferring assets or putting accounts in your family members’ names. Using these strategies and knowing when probate is required, individuals and families can make their estates easier to probate, and in some cases avoid it entirely.

Our Attorneys Can Help You Determine When Probate is Required for Your Case

At Harrison Estate Law, P.A., our experienced estate and probate team can help you review your loved one’s estate, identify probate assets, and select and complete the right kind of probate administration. Our estate planning attorneys can also help you plan ahead to protect your assets and reduce the probate process. Contact us here or call 352-559-9828 to get help today.