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NON-PROBATE ASSETS VS. ESTATE ASSETS UNDER FLORIDA PROBATE LAW

“Probate” is how a recently deceased property owner’s assets are distributed to beneficiaries. Property subject to probate is generally distributed in accordance with the deceased’s last will and testament if a valid one exists; otherwise it is distributed according to Florida’s intestacy laws. In most cases, not all of a decedent’s property is subject to probate; and in some cases none of it is.

If you die with most of your assets in probate, your beneficiaries may have a long wait ahead of them, because they cannot receive their distributions until the probate court releases them — which could be years under a worst-case scenario. To create an effective estate plan, you need to understand the difference between probate and non-probate assets.

Probate Assets

Some typical examples of probate assets include:

  • Real property that you own solely in your own name or as tenant in common;
  • Personal property — furniture, automobiles, jewelry. etc.;
  • Bank accounts in your name only;
  • Shares in a corporation;
  • Shares in a partnership or LLC;
  • Copyrights or patents held in your own name; and
  • A life insurance policy for which you or your estate is listed as sole beneficiary.

Non-Probate Assets

Non-probate assets are usually assets that can be transferred without the supervision of the probate court. Your last will and testament does not control the distribution of these assets — instead, these assets are distributed directly to your named beneficiaries shortly after you die and almost certainly before probate procedures have been completed. Following are some examples.:

  • Property in joint tenancy or tenancy by the entirety (typically real estate);
  • Bank accounts in joint tenancy or “payable on death” terms for the benefit of named beneficiaries.
  • Trust assets, including the assets of a revocable living trust (since even a revocab;le living trust becomes irrevocable as soon as you die);
  • Life insurance policies that name someone else (not you) as the primary beneficiary; and.
  • Retirement accounts such as IRAs.

Unintended Consequences

It is generally a good idea to move as much of your property as you can outside of the jurisdiction of probate before you die. Nevertheless, there are certain risks in doing so — especially if you plan unwisely:

  • Suppose you own a joint bank account with your son. You intend for your son to share these funds with your other children after you die. In this scenario, you are relying on trust — your son will have no legal obligation to share the money, regardless of the terms of your will.
  • Creditors can seize certain types of joint assets, such as money in a joint bank account, to satisfy the debts of the other joint owner — even before you die.

Contact Lorenzo Law Today

Jose Lorenzo is a Florida estate planning and probate lawyer with a strong track record of success. Our firm maintains offices in Coral Gables and Ft. Lauderdale, and we serve clients throughout Florida. We can be reached by phone at (305) 999-5411, through our online intake form, by email at [email protected] or by visiting one of our offices.

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Lorenzo Law Firm is ready to answer your questions or concerns. Feel free to contact us at your earliest convenience and make sure to call us in an emergency.

Lorenzo Law

Miami-Dade Office: 2850 Douglas Rd. Suite 303, Coral Gables, FL 33134

Broward: 12 SE 7th Street, Suite 701. Fort Lauderdale, Florida 33301

Phone: (305) 224-6811 | Email: [email protected]

We provide legal services throughout Florida including those in the following localities: Miami-Dade County including Aventura, Miami, Coral Gables, Doral, Fontainebleau, Hialeah, Homestead, Kendall, Key Biscayne, Miami Beach, Miami Lakes, North Miami, Tamiami, Westchester, and North Miami Beach; Broward County including Fort Lauderdale, Hollywood, Cooper City, Coral Springs, Hallandale Beach, Oakland Park, Pembroke Pines, Plantation, and Weston; and Palm Beach County including West Palm Beach.

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