When someone who owns property passes away, in most cases the only way to transfer their property to the rightful beneficiaries is through probate proceedings. Probate is a court-supervised process for identifying and collecting the assets of a deceased person, paying the decedent's debts and taxes, and distributing the remaining assets to the decedent's beneficiaries. The decedent's assets are used to pay for the probate proceeding, then they are used to pay outstanding debts, and whatever is left over is distributed among the beneficiaries.
Florida has two types of probate administration: formal administration and summary administration, which is a simplified probate procedure used for smaller estates.
Not all of a decedent's assets pass through probate. Probate administration only applies to what are called "probate assets," which are assets that the decedent owned in his or her sole name at the time of their death. Those assets that are owned jointly with rights of survivorship and with payable-on-death beneficiaries are not a part of the probate estate. The following are not probate assets:
- Life insurance policies with payable on death beneficiaries
- Bank accounts with payable on death beneficiaries
- Retirement accounts with payable on death designations
- Property held jointly with rights of survivorship
- Property owned by husband and wife as tenants by entirety (goes automatically to surviving spouse)
While probate is known for being a lengthy and complicated process, it is necessary for passing ownership of the decedent's probate assets to his or her beneficiaries. If the decedent had a valid will, it will not be possible to transfer ownership from the decedent to their beneficiaries without the will being probated in court.
Probate ensures that all of the decedent's financial affairs are resolved, all creditors and taxes are paid and that certain procedures are followed correctly. The process of probate or estate administration is handled by the personal representative who is either nominated in the will, or if there is no will, then the personal representative, usually a family member, is appointed by the court to settle the estate.
Beneficiaries may be disheartened to hear that their inheritance will be tied up in probate proceedings for up to a year or longer if there is a will contest or real estate to be sold, but it's important to understand that the legal procedure of probate is here for a reason and it keeps personal representatives in check. Personal representatives have to notify creditors, notify beneficiaries, follow the directions of the court and provide periodic accountings of all money going into and out of the estate.
If the decedent died without a will, then the estate will be distributed in accordance with Florida's intestate succession laws, which go into effect when someone dies intestate (without a will). For example, if the decedent left a spouse but no children, their surviving spouse receives all of the estate. If the decedent died leaving behind a spouse and children who are from the decedent and the surviving spouse, the spouse receives all of the decedent's probate estate. If the decedent dies with a surviving spouse and children they had together, and children from a previous relationship, the surviving spouse gets one-half of the probate assets and the decedent's children share the remaining half.
A personal representative about to venture into estate administration (probate) should always engage a qualified
Miami probate attorney to assist in the administration process. There are many legal issues that arise, even with the simplest estates and these issues can be resolved efficiently by an experienced attorney. To learn more about estate administration, contact me, attorney
Susan E. Durre at (305) 600-5677 today!