State Law for Probate

Probate Court is a special court that deals with the administration of the estate once a person dies.  The Court is in charge of distributing the decedent’s property and the decedent’s assets. Florida State law and probate law regulates the entire legal process. Depending what type of asset that you need to Probate, different Florida Laws could apply for your specific Probate matter. That is why it is important to make sure that you hire an attorney that is experienced in Probate matters because there could be specific issues that must be addressed to your situation. 

Starting Probate 

Probate begins by, either, a family member or the deceased person’s attorney filing a petition to begin the probate process.  The Court will then check to see if the deceased person died with or without a will.  A will is a legal written document where one states how to distribute their assets after they die and sometimes appoints a personal representative.  If the person died without a will, then they died intestate and the court judge would appoint a personal representative.  The personal representative distributes the assets to the persons listed in the will and is in charge of paying estate taxes the deceased person owes.  

Passing Away With A Will

If a person dies with a valid will, then the Court is to distribute the decedent’s assets to whom the decedent listed on the will.  The personal representative would be in charge of paying the estate’s creditors, paying the estate taxes, and distributing the assets to the beneficiaries.  The personal representative would need to find out what the decedent owned, was the decedent the sole owner, and what type of asset was it.  The most common assumption about a Will is that a Will automatically transfers the title of the assets to the beneficiaries. That is not the case. In order for the intended beneficiaries to received what they are entitled under the Will they must first Probate the Will

Passing Away Without A Will

If a person dies without a valid will or without a will at all, then the estate would be distributed by intestate succession.  Every state has statutes that govern intestate succession and what the break down is for the distribution.  Intestate succession distributes the estate to the deceased person’s next of kin.  The estate first gets distributed to the decedent’s surviving spouse.  From this point, intestate succession state law governs to who gets part of the estate.  Eligible people to inherit the decedent’s estate is his/her children, grandchildren, siblings, parents, parents, and aunts and uncles. Depending where you are in the family tree it will depend if you receive under Florida Law. 

Avoiding Probate

However, there are ways to avoid probate by the decedent’s estate planning.  A person may want to avoid probate in order to avoid the time delays or the costs and fees that comes accompanied by probate court.  The deceased person may have a small estate which are sometimes exempt and allow for a faster process.  The size that the estate would have to be depends on state law and statutes that determine the eligibility. Another form of estate planning would be by establishing a living trust.  A living trust would forego the need for probate because the trust is under the control of another person who is in charge of distributing the trust based on the trust agreement.  However, if the decedent is a named beneficiary in the trust then there would be a need for probate.  A trust is where one person holds something for the benefit of someone else.  Unlike a will that is mainly to distribute the decedent’s assets and estate after death, a living trust is where a decedent can basically place his/her assets in a trust that is managed by a trustee who is to distribute it to beneficiaries based on what is outlined in the trust agreement.  Another way to avoid probate is to make sure that all bank accounts, insurances, and retirement plans have beneficiaries listed.  If they do, then there is no need to probate because those assets automatically pass to the beneficiaries; if there is no beneficiary listed, then probate would need to ensue to determine the next of kin. 

Florida Probate Process

Probate is the legal process of distributing an estate that occurs after a person dies.  The probate court would oversee the entire process from beginning to end.  Florida State law governs the rules and processes of the probate court and distribution.  Probate makes sure that the estate is administered properly in order that the estate creditors get paid and that the beneficiaries get what they are entitled to. 

Probate Administration

The probate process can go different ways depending on whether the decedent dies with a will or without a will.  A will is a written legal document where one states what they want to happen to their assets after they die and sometimes appoints a personal representative (executor). If there is no will or if the will does not appoint a personal representative, then the court would appoint one pursuant to the statutory scheme under Florida State Law.  The personal representative is in charge of paying the decedent’s final bills, the estate’s creditors, the estate taxes, distributing the assets to the beneficiaries.  The personal representative is responsible to administer the estate of the decedent with the best interest of the beneficiaries in mind. That is why it is important to make sure that the personal representative has hired a competent probate attorney to help him/her guide him/her through the probate process. 

Probate with a Last Will and Testament 

If a person dies with a will, the whole probate process is a lot easier and smoother because the court and personal representative would just follow the decedent’s wishes.  The personal representative is the one who brings the will to probate court and fills a petition asking the court to accept the wills validity.  Furthermore, the personal representative would see the decedent’s legal plans such as how the decedents real estate and personal property is supposed to be distributed. The probate court will also oversee if the Last Will and Testament was validly executed pursuant to Florida State Law. If the Last Will and Testament was not validly executed, then it could create an issue and additional states will need to be taken in order to determine if the Last Will and Testament presented to the Probate Court was in fact the final wishes of the decedent. 

Common Assumption About a Last Will and Testament  

There is a common assumption with many potential clients when it relates to a Last Will and Testament. The common assumption is that the probate process is not necessary when the decedent left a Last Will and Testament. Unfortunately, a Last Will and Testament does not avoid the probate process. A Last Will and Testament does not transfer legal title to the decedent’s asset at the time of the decedent’s date of death. A Last Will and Testament is more of an instruction manual for the probate court to follow. The probate court must follow the instruction and law wish of the decedent pursuant to the Last Will and Testament. 

Probate Without a Last Will and Testament

If a person dies without a will, the decedent’s estate would be distributed by intestate succession.  The laws for how the estate will get distributed varies state by state but usually takes much longer than when the decedent dies with a will.  Since there is no will, the court would appoint a personal representative (executor).  The court would determine, by intestate succession laws, what heirs receive what portion of the estate.  Most states have the surviving spouse as the first in line to receive and then the intestate statutes distribute the rest of the estate.  In the state of Florida for example, if the decedent left a surviving spouse with children of the same marriage, or just a surviving spouse then the surviving spouse received one-hundred percent of the decedent’s assets. The statutory scheme is different depending if there is a surviving spouse and the blood relationship of the surviving children, if any children, with the surviving spouse and the decedent. That is why it is important to consult an experience probate attorney to advise you on the potential statutory scheme. 

Avoiding the Probate Process

However, there are ways to avoid probate by the decedent’s estate planning.  The deceased person may have a small estate which are sometimes exempt and allow for a faster process.  Each state has different maximums for what qualifies as a small estate.  Further, the person may have established a living trust and thus forgoes the need for probate. This would not need to go through probate since the trust is under the control of another person with legal title who is in charge of distributing the trust based on the trust agreement.   Another way to avoid probate is to make sure that all bank accounts, insurances, and retirement accounts have beneficiaries listed.  If they do, then there is no need to probate because those assets automatically pass to the beneficiaries; if there is no beneficiary listed, then probate would need to ensue to determine the next of kin.