What may sound like a simple question is actually quite complex.
The short answer is that probate is not always required after someone passes away in Florida.
Probate is only required for assets held in the deceased’s individual name.
What is probate?
To probate an estate in Florida means to “prove the will” of the deceased.
And, in the absence of a written will, to follow the statutory requirements for determining estate beneficiaries.
All estate administrations require an inventory and assessment of a deceased person’s assets, the identification and payment of estate debts, and then, the distribution of the deceased’s assets to beneficiaries of their estate.
The entire probate process is supervised by the court. The Florida Probate Code is contained in the Florida Statutes’ Chapters 731 through 735.
Assets that are subject to probate include individual bank accounts (as opposed to jointly held accounts), life insurance policies and individual retirement accounts without named beneficiaries, and individually owned real estate.
Situations that necessitate a probate
There are multiple types of probate processes that an estate can go through in Florida.
- Summary administration is a simplified process without the appointment of a Personal Representative.Instead, the judge reviews the Petition, the related assets and issues an order to release the assets to those entitled to inherit them. This process is available when the deceased passed away over two years ago or when the value of the deceased’s assets is less than $75,000.
- Formal administration, colloquially called a “regular” probate, occurs when a person with an interest in the estate asks the court to be designated as the estate’s Personal Representative, sometimes referred to an Executor. All beneficiaries of the estate are notified of this request so they have a chance to object and to be informed regarding estate proceedings. The court then oversees the management of the deceased’s assets, the payment of debts, and distribution of the estate to beneficiaries.
When a probate is not required
There are several situations where a probate is not required in Florida.
- A probate is unnecessary if the deceased did not own any real estate or if their assets are worth more than any outstanding debts.
- If the deceased’s assets have a designated beneficiary, and the assets will be distributed to that beneficiary through a “pay on death” or “transfer on death” designation(e.g., the decedent named a beneficiary on their bank accounts or brokerage accounts.)
- Assets that are co-owned by the deceased’s spouse typically do not need a probate, either.
- Similarly, joint tenants with the right of survivorship, called “JTWROS,” do not require probate.
- Any assets held in a living or revocable trust do not require probate.
Consult with a knowledgeable Florida probate attorney
Are you the beneficiary of an estate?
If you are wondering how to approach the assets and debts of a loved one after their death, an experienced probate attorney can advise you on how best to handle the situation.
If you are not sure whether you need to pursue probate, reach out to the Law Offices of Hoyt & Bryan.
We have experience with a wide range of probate and estate law matters, and we advise clients throughout Florida.
Call (407) 977-8080 or contact us online to set up a consultation today.