Florida Probate Process
Probate in Florida is a multi-step process that takes place under the supervision of Florida probate estate lawyers and the probate court judge. It can be summed up in three main steps:
- Gather the decedent’s assets
- Pay off any existing debts
- Give away all the money and assets
You start by identifying the assets, which may need to be used if there are existing debts and other legal expenses. Once that is completed, any remaining assets, like bank accounts and real estate, are distributed to all the beneficiaries.
In some instances, real and/or personal property may be protected from claims of certain creditors if the assets meet certain requirements.
Florida Homestead Exemption
The definition of Homestead can be found in the Florida Constitution, Article X, Section 4(a). Qualifying property will be exempt from a forced sale except for:
- The payment of assessments and taxes on the property;
- Any obligations that are related to the purchase of the property (i.e., the mortgage); or
- Any obligations relating to property improvements (like a mechanic’s lien).
Exceptions to Florida Probate
There are some types of property that may not pass through probate in some cases. These can be joint accounts, like a pay on death bank account or a right of survivorship account, as long as they are not declared convenience accounts under Florida probate law. Joint accounts that are intended to go to the survivor are known as a survivorship accounts while a joint account that is intended to be transferred to the estate after the owner’s death is known as a convenience account.
Another exception to the Florida probate process is a revocable trust that can help minimize or even eliminate the probate process. Certain assets held in trust may be passed through to the beneficiaries outside of probate, provided no one files a challenge or objection.
Paying Creditors and Debts
Probate creditors take priority over beneficiaries. For example, if a decedent owed a creditor money, the creditor will have to open up probate if not already open and follow procedure to make their claim. Probate creditors in Florida only have a certain amount of time to make their claim.
There is a difference between debts of the decedent and debts that involve service to the estate, which are administration expenses rather than an estate creditor.
Challenging a Will
While everyone hopes no one will challenge the decedent’s will, it happens far more than you may realize. The probate process is the venue for people to raise their objections and be heard. You may see disinherited family members, adult step-children, former beneficiaries, and second or third spouses hiring attorneys to challenge the will in an attempt to get their perceived fair share of the estate or have the will overturned entirely.
Retaining a Florida Probate Attorney
If you need a probate attorney or have estate planning questions, it’s important to speak with a Florida probate attorney. At the Law Offices of Larry E. Bray, P.A., we’ve been assisting clients with Florida probates for over 30 years. Contact our West Palm Beach office today at 561-571-8970 to schedule a consultation.