What is probate?
Probate is a court-supervised process for identifying and gathering the decedent’s assets, compiling an inventory, paying taxes, claims and expenses and distributing assets to beneficiaries. Florida’s probate system is found in Chapters 731 through 735 of the Florida Statutes and the Probate Rules adopted by the Florida Supreme Court.
Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida law provides for all aspects of the probate process, including processes to follow when the decedent leaves a valid Last and Testament [dies testate] and processes to follow when he/she dies without a valid Last Will [dies intestate].
How does property pass from one person to another?
It passes either in probate or outside of probate, depending on how it is labeled or titled during the decedent’s lifetime. Some assets or property may “pass outside of probate,” depending on the circumstances. As an example, the home which a husband and wife own and in which they lived as their primary residence, is “homestead property” and passes to the surviving spouse “outside of probate.” A court order is necessary to determine homestead property. The value of the home is not included in the valuation of the estate under these circumstances. Some assets may go directly to a named beneficiary and thus “pass outside of probate” if there was a contract during the person’s lifetime whereby he/she had a relationship with a financial institution or an insurance company allowing for the policy proceeds or bank account or annuity to be paid to a beneficiary upon the death of the individual in question. If these types of assets were held without a named beneficiary on the account, they must be disbursed through the probate process once the person dies. Other property may “pass outside of probate” if it was titled in the name of the decedent and another person “with right of survivorship”
Florida Probate Process
Most probate administrations require the involvement of a Florida attorney. Florida’s system is too complex for many personal representatives to follow without guidance from a licensed attorney and the courts do not have the staff to provide probate legal assistance. Many legal issues arise, even in the simplest estate administration. The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative is not the attorney for the beneficiaries. The types of administration are Formal, Summary and Disposition Without Administration. Each has different estate value thresholds. Even with a smaller estate, “Letters of Administration” may be necessary to release assets. Depending on the size and complexity of the estate, the process takes anywhere from 6 months to a year to several years – if there is litigation.