Undoubtedly, dealing with the passing of a loved one is a psychologically complex situation. After someone dies, the assets left behind by the decedent need to go through a probate process, whether there is a testament in place or not.
However, probate law has a significant amount of complexity involved, as the probate requirement may vary. In this article, you will discover the cases in which Florida probate is necessary.
What is Probate? – Explaining the Term
When someone dies, the person’s assets usually will pass through a probate court. In this context, the term “probate” refers to a legal process designed to allow for the transfer of the decedent’s estate to its rightful heirs.
In a probate process, a probate court will oversee the decedent’s estate administration- either the person died with or without a last will. Besides supervising the payment of any of the decedent’s outstanding debt(s), the probate proceedings will:
- Identify the extent of the decedent’s estate (including all assets)
- Reuniting all assets within the estate’s scope
- Liquidating the assets (as determined by the court)
- Distributing the remaining assets to the rightful beneficiaries
Additionally, when necessary, a probate court in Florida may determine guardianships and conservatorships.
When Is Probate Necessary in Florida? – A Summarized Guide
In short, most cases involving someone who died in Florida will require a probate process. There are three different probate types – summary administration, formal administration, and disposition of personal property without administration.
As provided by Florida Statutes (Section 735.201), a probate court will determine a summary administration when the decedent has been deceased for over two years or when the total amount of assets left is less than $75,000.
Generally, a formal administration will happen when the decedent has been dead for two years or less, and/or the value of the decedent’s estate is superior to $75,000.
A disposition of personal property without administration usually happens when the decedent’s estate is considered particularly small. Hence, it is an expedited way of transferring the decedent’s assets.
In Florida, most decedent estates tend to go through a formal administration, which is a longer and more complex probate proceeding. During the process, a probate court will:
- Appoint a personal representative
- Issue the Letters of Administration granting specific individuals permission to access and manage the decedent’s estate
- Collect all the decedent’s assets
- Collect on debts owed to the decedent, notify creditors, and pay all remaining taxes
- Distributing the assets to the rightful beneficiaries
When someone dies without a will in Florida, the process occurs according to the state’s intestacy laws.
Is it Possible to Avoid Probate? – A Realistic Overview
Indeed, there are cases in which it is possible to avoid or at least reduce the extent of probate. Probate law provides that the process only applies to assets that the decedent held solely in their own name at the moment of his/her passing.
Hence, many assets do not need to go through probate, such as:
- Real property owned in joint tenancy or tenancy by the entirety
- Any property held by the decedent into a trust
- Insurance policies, retirement accounts, and/or annuities
- Bank/brokerage accounts under joint tenancy
- Bank/brokerage accounts with payable-on-death and transfer-on-death beneficiaries
- Life insurance or brokerage-related accounts with beneficiaries that are not the decedent
- Property transferred to beneficiaries while the decedent was still alive
Feasible Strategies to Avoid Probate in Florida – Work with Jurado and Farshchian, P.L.
It is possible to avoid probate in Florida, as long as you employ a strategic approach. Waste no time with uncertainty – get in touch with Attorney Romy B. Jurado today by calling (305) 921-0976 or sending an email to [email protected] to schedule an initial consultation.