What is Probate?

Snapshot of the Florida Probate Process

Probate is the legal process that occurs after a person dies.  Florida state law would regulate the entire process, the court would adhere to state requirements and probate laws in place to determine how to dispose the decedent’s property.  The probate process can begin by an attorney or someone appointed by the court. Depending on the size of the estate, probate may take a few months to a year.  The process usually goes as follows: filings the initial opening documents, filing of death certificate and or will, if there is a will, a creditor’s period, and then judge approves the distribution of assets.  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.

Deceased Person’s Will

Once the family members bring the deceased person’s last will, if the deceased person left a will, to probate court, the probate process will begin.  A will is a written document where one states what they want to happen to their assets after they die and sometimes appoints a personal representative.  Here, the court would authenticate the will, determine the types of assets the deceased person had, and distribute the assets to the family members. It is important to note that a Will have to be properly executed pursuant to Florida state law in order to be a valid Will.

The Personal Representative’s Role

The court would also appoint a personal representative, if not appointed by the will, who distributes the assets to the persons listed in the will and is in charge of paying estate taxes the deceased person owes.  The personal representative is the one in charge of paying the creditors and then distributing the assets to their respective persons.  The personal representative is in charge of determining, if there are not enough liquid assets to pay the creditors, which assets to sell to pay the debts.  Overall, the personal representative needs to inventory all the decedent’s assets, the proper claimants, and distribute to the proper beneficiaries.  The personal representative would need to find out what the decedent owned, was the decedent the sole owner, and what type of asset need to go through the Probate process.

Assets That Could be Part of the Probate Process

The assets that will be distributed include anything that is tangible or intangible that the decedent owned.  Real estate can be inherited but would still need to go through probate.  For life insurances, there is usually a named beneficiary so there would be no need to go through probate. In the event that the insurance policy does not have a beneficiary, then it must go through Probate. Probate for bank accounts depend on whether there is a named beneficiary on the account; if there is a beneficiary, then there is no need for probate, if there is no beneficiary, then there would be a need for probate.

Probate Process Without A Will

Probate may still occur even if the deceased person did not leave a will in place; the court would simply appoint someone to manage the estate and assets during the whole process.  The whole probate process would stay the same with or without a will. There are several reasons for someone dying without a will; perhaps they were young or maybe they wrote a will, but the will was improperly executed.  In this case, Florida’s intestacy statutes would govern and any property that is not distributed by a valid will, or any probate assets that were not properly taken care of by estate planning would go through intestacy to the decedent’s heirs.  Heirs include descendants, spouses, parents, children and, maternal and paternal kindred.

Estate Planning to Avoid Probate

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.  Further, the person may have established a living trust and thus forgoes the need for probate. A trust is where one person holds something for the benefit of someone else.  This would not need to go through probate since the trust is under the control of another person who is in charge of distributing the trust based on the trust agreement.  However, there would be a need for probate of trusts if the property ends up back in the decedent’s estate because he/she was a named beneficiary in the trust.