Tiffany Law Probate

Probate Administration: A Brief Overview

Probate Administration in Florida is a court-supervised process wherein a deceased person's property is identified & gathered, debts and taxes are paid, and the remaining assets are distributed to its beneficiaries, heirs, or the state. 

The Florida probate process is governed by the Florida Probate Code, Chapters 731 through 735 of the Florida Statutes, and the Florida Probate Rules, Part I and Part II.  Due to the various laws and technical rules that govern Florida probate proceedings, a Personal Representative can hire a Florida probate attorney to facilitate the navigation of an estate's administration. 

Do I Need An Attorney to Assist with the Probate Process? 

Florida law requires an attorney's involvement in the Florida probate process in most cases. An attorney, however, is not required for Summary Administration, Disposition Without Administration, nor for an estate where the Personal Representative is the sole beneficiary.  Even so, the Personal Representative, also known as an executor in other jurisdictions, has a legal duty to administer the deceased's estate in accordance with Florida law.  Given the complexities of probate administration and potential consequences if not done correctly, it is strongly recommended to hire a Florida probate attorney to help you navigate the probate courts. 

What is a Probate Asset?

Probate administration applies only to assets that are "probate assets." Here are a few examples of probate assets: bank accounts solely in the deceased's name, life insurance policies, individual retirement accounts, or annuity contracts wherein there is no named beneficiary, and real estate solely in the deceased's name (unless it is homestead property). 

Determining whether or not an asset is subject to probate is not always so straightforward. For example, the type of ownership interests in property will dictate whether an asset is subject to probate or not. Real estate with tenants in common ownership is a probate asset. However, real estate with survivorship ownership interest is not a probate asset. Another example, probate assets typically include a deceased's personal property such as clothes, jewelry, furniture. However, a deceased's personal property is not a probate asset if the type of proceeding is Disposition Without Administration and the property is an "exempt asset," as described in section 732.402 of the Florida Statutes. Additionally, trusts are typically written to transfer trust property immediately upon the death of the beneficiary to another. Property named in a trust is not a probate asset. 

It is recommended to hire a probate attorney to assist in determining exactly whether a particular asset is subject to the probate process, or if it can be transferred without delay.

What Happens When the Deceased Does Not Have a Will or Trust?

When a person passes without a will, they are deemed to have passed "intestate." The consequences of passing intestate means that the Florida law will fully dictate how the person's estate will be managed and distributed. Typically, after the estate's debts are determined and paid, then the deceased's heirs will inherit any leftover assets in order of priority set forth by Florida law. However, if a person passes intestate without any living heirs, their property will escheat to the State of Florida. In other words, the rights to the deceased's property will transfer to be owned the government of the State of Florida. 

Conclusion

The Florida probate process can sometimes be a daunting experience, as it involves a series of tasks that must be completed in accordance with Florida law.  Hire a probate attorney today to help you navigate the Florida probate laws and courts to facilitate your duties as a personal representative.