What is Probate?
When someone passes away, a Florida probate will likely follow. Essentially, probate is the court-supervised process of authenticating someone’s last will and testament. The process includes:
- Locating the decedent’s assets;
- Determining the value of these assets;
- Identifying creditors;
- Paying any final bills and taxes owed; and
- Distributing the remainder of the estate’s assets to their intended beneficiaries.
Someone who has an interest in a Florida estate can start the probate process by filing the necessary “petition for administration” with the proper court clerk, which would be in the Florida county where the person died or where the assets are located.
When is Probate Required?
Drafting your final will and testament doesn’t let you avoid the probate process. In order to skip this, you would need to have certain kinds of trusts set up that would allow the assets to pass directly to the beneficiaries or remain in the trust as necessary.
In the event someone dies without a trust, will, or any other estate planning in place, it’s called “intestate” and probate is still required in this situation.
Exceptions to Probate
Not all property will undergo probate. Proper substitutes for a will allow property to automatically pass to a beneficiary, by operation of law. Depending on the circumstances, some of the most common examples of these may include:
- Life insurance
- Retirement accounts
- Mutual funds
- Pay on death accounts (POD)
- Transfer on death accounts (TOD)
Assets like mutual funds and IRAs are exempt when they are joint accounts with beneficiary designations. Couples who hold property as joint tenants with the right of survivorship or as tenants by the entirety are also considered will substitutes.
Avoiding probate with these will substitutes is not absolute. It’s not uncommon to have family members argue over money and fight over property when someone passes away. If this happens, you will still undergo probate litigation for items like life insurance policies, joint accounts, IRAs, and even revocable living trusts.
What are Revocable Trusts?
Revocable trusts, also called revocable living trusts or just simply living trusts, are another tool to avoid probate. Revocable means the trust can be revoked, and the term living means it was created while you are alive. Trusts may not fit into every estate plan, and there are different types of trusts that may work best for your particular situation. Speaking with a knowledgeable Florida estate planning attorney can help you determine if a revocable trust is right for you.
Appointing an Executor
Sometimes referred to as a personal representative, the executor is the person who oversees the probate process. Many people name an executor in their will, but the court may need to appoint one if the decedent didn’t leave a will. In most cases the executor might be a surviving spouse or child who is over 18.
Retaining a Florida Probate Attorney
Do you need to open probate on a decedent’s estate? If so, it’s important to speak with a skilled Florida probate attorney to help you through the process. At the Law Offices of Larry E. Bray, P.A. we’ve been helping people with their estate planning and probate needs for over 30 years. Contact us today at 561-571-8970 to schedule a consultation.