What is probate, what assets go through probate, and what doesn’t?
Probate is the process that occurs after one has passed away ensuring that their estate is properly administered. If the person that has passed away had a last will and testament, the probate process will ensure the will is valid legally, execute the wishes, and ensure applicable taxes are paid.
Let’s define a few words before we move on with this blog.
What exactly is an estate? Well according to Investopedia, “An estate is everything comprising the net worth of an individual, financial securities, cash, and other assets that the individual owns or has a controlling interest in.” And we’ll be going over in detail what those other assets are comprised of later on in this blog. We also mentioned a document titled “last will and testament”. You may be asking what the difference is between a “Living Will” and a “Last Will and Testament” and although they both have the word “will” in their name, they’re actually quite different. A Living Will provides instructions solely for medical purposes. This legal document comes into play when he or she are incapacitated, ill, or cannot communicate their wishes themselves. A last will and testament pertains to assets and their distribution.
Back to it; what are a few of the assets that do NOT need go through Florida probate?
- Jointly owned property, but it must include a right to survivorship. This ensures that if one of the owners passes away, the other owner automatically gets the deceased’s portion of the property.
- Bank accounts with assigned beneficiaries, or a POD account. The question that comes after that is, what exactly is a POD account? A POD account is a “Payable on Death” account which means that if the owner of the account passes away, the POD beneficiary would inherit the money without going through the Florida probate process.
- Retirement accounts, such as IRAs or 401(k)s. Again, these may not need to go through probate if a beneficiary is named.
What are the assets that DO go through Florida probate?
- Bank or investments accounts, and as long as they are solely in the name of the person who has passed and are not owned jointly.
- Real estate, vehicles, and assets solely owned by the person who has passed. However, sometimes vehicles do not have to go through probate. Check out our article where we discuss transferring vehicles.
- Personal possessions, and any household items. This may include jewelry, clothing, and any collections they may have been holding on to that remain after their death.
What does the Florida probate process look like?
Now that you’re informed about what may go through probate and what will not, you probably want to know what the overall process looks like. Below is a high-level overview of what the process may consist of.
1.The proposed personal representative meets with a Florida probate attorney. Upon meeting, the attorney will ask the representative to gather a number of documents.
2.Documents are filed with the Florida probate court which would mean probate has officially started. This includes a petition for administration and an oath from the proposed personal representative accepting the role as a personal representative.
3.Beneficiaries of the estate must be notified that probate is underway.
4.The court will sign Letters of Administration and an Order Appointing the Personal Representative. With those letters, the representative will be able to open an estate account and deposit the assets that will be going through probate into the account.
5.Creditors must be notified. There is a window that creditors have in order to make claims, and the representative can choose to pay the claims or dispute them.
6.Once done, the assets are sold and placed into the estate account. Also, as part of settling the estate of the descendent, the personal representative must prepare an income tax return and deal with any other taxes including an estate tax.
7.A plan is created to distribute the assets to the named beneficiaries, and if all beneficiaries agree on the plan then the assets are distributed accordingly.
8.Once distributed, the court will discharge the personal representative and close the proceeding. Case is then closed.
As you can see, the Florida Probate process can be quite complex and overwhelming, and we highly recommend speaking to an attorney before you decide to take any action of your own. Stivers Law, based out of Miami, Florida, has handled hundreds of cases throughout the State of Florida.
If you found this article valuable, we’d love for you to speak with a member of our team to discuss how we can help you through the Florida probate process. Please call us at 305-456-3255 or fill out the Contact Us page and we will contact you right away. And for those who would like to do more research – we have you covered! Download our free guide today titled: “A Love One Has Died – Now What?” to learn more about the Florida probate process.
Thank you for your interest in Stivers Law and we look forward to speaking with you soon.
As a reminder, the information provided on this blog article is only to be used for general informational purposes and not intended to be used as legal advice.