Probate

What is Probate?

Probate is the court-supervised process of identifying and gathering the assets of a decedent, paying the decedent’s debts and distributing the balance to the decedent’s beneficiaries.  In Florida, there are two primary forms of probate:  formal administration and summary administration.

In both formal administration and summary administration there are a number of steps that need to be taken and parties who need to receive notice of the probate proceeding.  It is important that all of these steps are taken to ensure that the process is not prolonged.

Not all estates require probate.  Probate administration only applies to probate assets, which begs the question… what are probate assets?  Probate assets are the assets that were owned by the decedent in his sole name at the time of death.  If the asset had a joint tenant with a survivorship interest or a designated beneficiary (pay on death account, designated beneficiary on life insurance or retirement account), then the asset is not subject to probate administration.

What are Probate Assets?

• A bank account or investment account in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a probate asset.
• A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset or that does not have a name beneficiary. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.
• Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is an asset subject to probate. Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset. Also, property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse goes automatically to the surviving spouse.

This list is for illustrative purposes and is not a complete list.

Why is Probate necessary?

Probate may be necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law. Some assets do not require a probate proceeding to transfer ownership. You should contact a probate attorney to provide specific guidance.

Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.