Probate is a legal process that occurs when a person passes away, and it is of utmost importance in ensuring the smooth transfer of assets and property to their intended beneficiaries. In the state of Florida, probate proceedings come with specific rules and regulations that must be followed.
In this blog post, we will address four critical frequently asked questions (FAQs) about Florida probate to provide you with a better understanding of this legal process.
4 FAQs about Florida Probate
- What is Probate?
Probate is a formal legal process that recognizes a will and establishes a personal representative for a deceased individual. The primary objective of probate is to gather the decedent’s assets and distribute them to the intended beneficiaries as specified in the will. In the state of Florida, there are two primary types of probate administration:
- Formal Administration: This is the traditional probate process, and it is typically employed when the decedent’s estate exceeds a certain threshold. In formal administration, the decedent’s assets are used to cover the probate proceedings’ costs, funeral expenses, and any outstanding debts. After these obligations are met, the remaining assets are distributed among the decedent’s beneficiaries as stipulated in the will.
- Summary Administration: Summary administration is a simplified probate process that can be used when the estate’s value is relatively low. In summary administration, the court may expedite the probate proceedings, making it a quicker and less expensive option. However, there are limitations on the type of assets that can go through summary administration, and the estate’s value must meet specific criteria.
- Do All Assets Go Through Probate?
Not all assets are subject to the probate process in Florida. Assets that pass through probate are typically those that do not have provisions for automatic succession of ownership after the decedent’s death. These probate assets include:
- Property: Real estate properties owned solely by the decedent.
- Money: Any funds held in the decedent’s name alone.
- Vehicles: Automobiles, boats, and other vehicles registered in the decedent’s name.
- Stocks and Bonds: Stocks and bonds that are not held in a brokerage account with a designated beneficiary.
On the other hand, there are assets known as non-probate assets that bypass the probate process entirely. These assets include:
- Life Insurance Policies: If a beneficiary is named, the insurance proceeds go directly to the beneficiary.
- 401(k)s, IRAs, and Annuities: Accounts with designated beneficiaries will not go through probate.
- Assets in a Trust: Assets placed in a properly funded trust.
- Assets Held Jointly with Rights of Survivorship (JTWROS): For example, if a house is owned jointly with rights of survivorship, it automatically passes to the surviving co-owner.
Understanding the distinction between probate and non-probate assets is crucial in estate planning to ensure your assets are distributed as intended.
- What If There Is No Will?
When an individual passes away without leaving a will, the legal framework of the Florida Intestacy Statutes comes into play. In such instances, the court takes on the role of overseeing the allocation of the deceased person’s probate assets. Typically, in the absence of a surviving spouse, these assets are distributed to the descendants, parents of the decedent, or siblings, depending on the specific family structure. Recognizing that the probate of assets without a will can present a challenging and time-consuming process. To ensure that your assets are distributed in accordance with your intentions, it is highly advisable to proactively create a will and designate a personal representative.
- Do I Need an Attorney for Probate?
The probate process in Florida can be a lengthy and complex procedure that may take anywhere from several months to a couple of years, depending on the complexity of the estate. The timeline for closing the probate estate varies, but in cases that do not require the filing of a federal estate tax return and do not involve litigation, the process can be completed in approximately five to six months. If the estate is required to file a federal estate tax return, the timeline for closing the probate administration will depend on the tax return’s due date, which can sometimes extend beyond a year.
The short answer is yes; you will generally need an attorney to navigate the intricacies of probate in Florida. Probate involves a range of legal documents that must meet specific specifications and precise wording. These are areas where legal professionals are well-equipped to provide expertise. There are a few exceptions, such as in cases of “disposition without administration” or “summary administration,” and when the executor is the sole beneficiary, where legal representation may not be mandated. However, it is still advisable to consult with a probate lawyer to ensure that all legal requirements are met, especially when dealing with complex estates.
If you are the executor of a will in Florida, you need to hire a lawyer to complete the probate process. You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. The probate process can be complex, and if not done correctly, it can result in additional costs and delays.
Schedule a Consultation with Casal & Moreno Today
If you are located in Coral Gables, Coconut Grove, Miami, Pinecrest, South Miami, Doral, or Brickell and need assistance with your Florida probate matters, the dedicated professionals at Casal & Moreno are here to help. Whether you are dealing with the complexities of formal administration or exploring options for summary administration, our experienced legal team can expertly guide you through the process.
Contact us today at (305)-476-5080 to schedule a consultation and discuss your unique case. Our expertise can help you confidently navigate the Florida probate process while providing you with peace of mind.