State Law for Probate
Probate court is a special court that deals with the administration of the estate of a person that passes away. The court is in charge of distributing the decedent’s property and the decedent’s assets. Florida law and probate law regulates the entire legal process. Depending what type of assets that you need to probate, different law and procedure could apply to your specific probate matter. That is why it is important to make sure that you hire an attorney that is experienced in probate matters because there could be specific issues that must be addressed to your situation.
Probate begins by, either, a family member or the deceased person’s attorney filing a petition to begin the probate process. The court will then check to see if the deceased person died with or without a will. A will is a legal written document where one states how to distribute their assets after they die and sometimes appoints a personal representative. If the person died without a will, then they died intestate and the court would appoint a personal representative based off of certain qualifications. The personal representative distributes the assets to the persons listed in the will and is in charge of paying estate taxes the deceased person owes.
Passing Away with a Will
If a person dies with a valid will, then the court is to distribute the decedent’s assets to whom the decedent listed on the will. The personal representative would be in charge of paying the estate’s creditors, paying the estate taxes, and distributing the assets to the beneficiaries, among other duties. The personal representative would need to find out what the decedent owned, if the decedent the sole owner of those assets, and what type of asset was it. The most common assumption about a will is that a will automatically transfers the title of the assets to the beneficiaries. That is not the case. In order for the intended beneficiaries to received what they are entitled under the will they must first probate the will.
Passing Away Without A Will
If a person dies without a valid will or without a will at all, then the estate would be distributed by intestate succession. Every state has different statutes that govern intestate succession and what the break down is for the distribution. Intestate succession distributes the estate to the deceased person’s next of kin. Typically, the estate first gets distributed to the decedent’s surviving spouse. From this point, intestate succession state law governs to who gets the remaining portions of the estate (usually the decedent’s children). Typically heirs of an estate are a decedent’s children, grandchildren, siblings, parents, and aunts and uncles. Depending where you are in the family tree will dictate what you receive under Florida law.
There are ways to avoid probate by doing proper estate planning. A person may want to avoid probate in order to avoid the time spent in administration, the costs, and attorneys’ fees associated with the probate process. By creating and funding a living trust with property, one can avoid probate of the assets that are transferred in trust. In a trust, a person holds something for the benefit of someone else. A validly created trust avoids probate because the trust is under the control of another person who is in charge of distributing the trust assets based on the trust agreement. Unlike a will that merely instructs how to distribute the decedent’s assets and estate after death, a living trust is where a decedent can place his/her assets in a trust that is managed by a trustee who is in charge of distributing trust assets to the beneficiaries based on what is outlined in the trust agreement. Another way to avoid probate is to make sure that all bank accounts, insurances, and retirement plans have beneficiaries listed. If they do, then there is no need to probate because those assets automatically pass to the beneficiaries; if there is no beneficiary listed, then probate would need to ensue to determine the next of kin.