The death of a family member is often a stressful and confusing time for the survivors. Aside from having to deal with the loss itself and the accompanying burial and funeral rights, there are also a number of potential legal issues that need to be addressed. Foremost among them is dealing with the probate process.
Probate is often misunderstood by people outside of the legal profession. Not every death triggers the need to open a formal probate administration. Probate itself only governs certain assets that belonged to the deceased individual (or the decedent, as they are known in probate terms). With that in mind, here is a brief overview of what the Florida probate process actually entails.
Identifying Probate Assets
A probate asset is anything owned in the decedent’s sole name at the time of their death. This can include bank accounts, real estate, life insurance policies, or even money owed to the decedent. The key is that a probate asset is not titled in the name of a trust or is jointly owned with another person who has automatic survivorship rights. For example, if you co-own any property with your spouse as tenants by the entirety, that is not considered a probate asset, as your spouse automatically assumes sole ownership upon your death. Similarly, any asset that is titled as “payable on death” to a beneficiary, such as a bank account, is excluded from your probate estate.
When Is Probate Necessary? And What Is Involved?
Probate is actually the process of transferring assets upon the decedent’s death. So if there are no probate assets, there is consequently no need for probate. And even if there are some probate assets, a formal probate administration may still not be necessary.
For example, when the probate estate is small–i.e., it is worth less than $75,000–and does not include any real estate like a house, Florida provides for a simplified probate process that involves filing an affidavit. The affidavit must describe the probate assets and identify who inherits them. If the decedent had any final bills, they must also be paid from the available probate assets.
For larger estates, a more formal probate is typically required. This involves having a Florida circuit court judge appoint a personal representative to oversee the probate estate. The personal representative has several responsibilities: gathering the probate assets, identifying and notifying any creditors of the decedent’s death, paying any valid expenses and claims against the estate, filing necessary tax returns, distributing assets to beneficiaries, and finally closing the estate by filing an accounting with the court.
Does It Matter If the Decedent Left a Will?
One common misconception about probate is that it is only necessary when the decedent left a will. In fact, the absence of a will does not negate the potential need for probate. Florida law provides for the probate of what are called intestate estates, i.e., estates where there is no will. If there is a will, however, it will express the decedent’s wishes regarding certain probate matters, including who should serve as personal representative and who are the beneficiaries of the estate.
If you have any questions or concerns regarding the probate process and need to consult with an experienced Tampa estate planning attorney, contact Older Lundy Koch & Martino, today.
