While the answer to “What assets are exempt from probate in Florida?” may be unclear at first, Florida law provides information on property that is not subject to probate.
Probate is a court-supervised process that ensures property left behind after the owner’s death is fairly and correctly distributed. Probate assets are those that the deceased owned upon death and were not set up to transfer automatically to someone else. For example, under Florida Probate Code Section 732.402, the surviving spouse (if the deceased person was a resident of Florida) or surviving children may be entitled to a share of the estate before any creditors’ claims are made.
WHAT ASSETS ARE EXEMPT FROM PROBATE IN FLORIDA?
Home furnishings in the primary residence, up to $20,000 in value; two motor vehicles in the decedent’s (deceased person’s) name and regularly used (each not weighing more than 15,000 pounds); tuition programs qualified under the IRS Code, Section 529; and some types of educator death benefits are all exempt from probate in Florida. Again, the surviving spouse or, if no surviving spouse, the decedent’s children may be entitled to assets exempt from probate in Florida.
If exempt property is left to a person in a will who would not usually be exempt to the property, the property becomes non-exempt. But, aside from that, the property is exempt.
In Florida, the following assets are exempt from probate:
- Trusts that are revocable. Beneficiaries are named in a revocable trust; thus, assets named in a revocable trust are exempt from probate.
- Beneficiaries Selected. Assets exempt from probate where beneficiaries have been designated to receive the asset upon the owner’s death, unless the estate itself is listed as the beneficiary.
- Transfer-on-death. If the owner of a bank account or property specifies that a specific beneficiary receives that asset upon the owner’s death, that is exactly what will happen, and there will be no probate involved.
- Joint Title with Survivorship Rights. Joint Title with Rights of Survivorship can be applied to both real estate and bank accounts. When an asset is titled in this manner, it is not subject to probate.
- Tenancy By Entireties. When one spouse dies, the surviving spouse is automatically designated as the asset owner. According to the law, an asset owned jointly by a married couple is treated as a Tenancy by the Entireties and is exempt from probate unless designated explicitly to another beneficiary.
- Homestead in Florida. The primary residence is also known as a homestead in Florida. If the deceased person was married at the time and/or had minor children, determining this property asset can be difficult. If the homestead property is not automatically transferred through a Revocable Trust, beneficiary designation, jointly with Rights of Survivorship, or Tenancy by Entireties, it will almost certainly have to go through probate.
ASSETS THAT MUST PASS PROBATE
Anything only in the decedent’s name, such as a bank account, investment account, life insurance policy, individual retirement account left solely to the decedent’s estate (without a designated beneficiary), annuity contract with no designated beneficiary, or real estate with only the decedent’s name on it, is subject to probate in Florida. Unless it is a primary residence, real estate that is listed on it as “tenants in common” with another person is regarded as a probate asset (also known in Florida as a homestead property). The surviving spouse automatically receives property that is designated as being owned by “tenants in full” and does not need to go through probate.