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Home > Blog > Estate Planning (Wills, Trusts, Deeds, Business Succession) > Understanding the Florida Probate Process

Understanding the Florida Probate Process


Probate can seem like a complex and never-ending process. However, it’s actually quite simple. Probate is the process by which a decedent’s assets are passed to their beneficiaries. Broken down further, probate is the process by which a deceased person’s assets are collected, used to pay off any debts, and are then dispersed to the decedent’s beneficiaries. Probate is necessary in order for a decedent who lacked a will to pass on their assets, it’s also necessary for many people to settle their financial affairs after they’ve passed away.

Identifying Assets for Florida Probate

Depending on the financial situation of the decedent, the process of identifying assets can go very quickly or be incredibly time consuming and complex. In general, assets considered for probate include any assets that are solely in the name of the decedent at the time of death as well as any assets in the name of the decedent and another individual jointly, than lacked a survivorship clause defaulting ownership to the other individual in the event of the death of one owner. Assets include things like bank accounts, real estate, stocks, bonds, and other liquid and non-liquid valuables.

Exceptions to Probate Assets

There are some exceptions to what assets must be identified and used to pay down the decedent’s debts. Some assets are protected from creditors and liquidation. As noted above, certain types of joint accounts are considered assets for the purpose of probate and others aren’t. Pay-on-death accounts and right-of-survivorship accounts are exempted from consideration for probate as the ownership transfers to the other owner at the time of death.

Another example of an asset that avoids probate is a revocable trust. Many people elect to create a revocable trust because it allows many of the assets included in it to avoid probate, and to be passed on to their beneficiaries outside of probate (provided there are no legal objections or challenges).

Another possible exception is known as the Florida Homestead Exemption. This prevents the forcible sale of ones’ home to pay creditors except in limited circumstances. For instance, a decedents’ home may still be liquidated during the probate process if debt is owed on taxes for the property, a mortgage or other financial obligations related to the purchase of the property, or for improvements on the property. However, in many other instances, the homestead exemption can protect a decedent’s family home. A Florida Estates Attorney can help you determine how best to protect your assets.

Paying Creditors During the Probate Process

In the order of priority, creditors get first claim to the decedent’s assets, then whatever is left over can be distributed to the decedent’s beneficiaries. Creditors must make a claim to a decedent’s estate within a specified period of time in order to be considered.

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If you have questions about protecting your assets, the Law Offices of Larry E. Bray are here to help. An experienced West Palm Beach estate planning lawyer can help you come up with an estate plan that ensures that your assets will be protected, your loved ones provided for, and your wishes honored. Schedule a free consultation today.

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