What is Probate?

What is Probate?

Snapshot of the Florida Probate Process

Probate is the legal process that occurs after a person dies.  Florida state law would regulate the entire process, and the court would adhere to state requirements and probate laws in place to determine how to dispose of the decedent’s property.  The probate process can begin once an attorney files what is called a petition for administration with the court. Depending on the size of the estate, probate may take a few months to a year.  The process usually goes as follows:

  • Filings of the initial opening documents;
  • Filing of the death certificate and/or will;
  • The publication of a notice to creditors to begin the creditor’s period;
  • Then finally the distribution of assets with the approval by the judge.

The purpose of probate is to make sure that the estate is administered properly, so that estate creditors get paid anything they are owed and that the beneficiaries get what they are entitled to.

Deceased Person’s Will

Once the family members bring the deceased person’s last will and testament (if the deceased person left a will) to probate court, the probate process will begin.  A will is a written document where one states what they want to happen to their assets after they die and sometimes appoints a personal representative.  Here, the court would authenticate the will, determine the types of assets the deceased person had, and distribute the assets to the family members. It is important to note that a will have to be properly executed pursuant to Florida state law in order to be a valid will.

The Personal Representative’s Role

The court would also appoint a personal representative (if not appointed by the will) who distributes the assets to the persons (called beneficiaries) listed in the will and is in charge of paying expenses and taxes the deceased person owes.  The personal representative is the one in charge of paying the creditors and then distributing the assets to the respective beneficiary.  The personal representative is in charge of determining, if there are not enough liquid assets to pay the creditors, which assets to sell to pay the estate debts.  Overall, the personal representative needs to inventory all the decedent’s assets, determine who are the proper claimants, and distribute to the proper beneficiaries.  The personal representative also would need to find out what the decedent owned at the time of his or her death, determine if she or she was the sole owner, and what type of asset needs to go through the probate process.

Assets That Could be Part of the Probate Process

The assets that will be distributed include anything that is tangible or intangible that the decedent owned at the time of his or her death.  Real estate can be inherited but would still need to go through probate.  For life insurance policies, there is usually a named beneficiary so there would be no need to go through probate.  In the event that the insurance policy does not have a beneficiary, then it must go through probate. The need for the probate of bank accounts depends on whether there is a named beneficiary on the account; if there is a beneficiary, then there is no need for probate, if there is no beneficiary, then there would be a need for probate.

Probate Process Without A Will

Probate may still occur even if the deceased person did not leave a will in place.  The court would simply appoint someone to manage the estate and estate assets during the whole process.  The probate process would not change much whether or not there was a will as the court would still need to appoint someone to manage the affairs of the estate.  In the case a person does without a will (called dying intestate), Florida’s intestacy statutes would govern and any property that is not distributed by a valid will, or any probate assets that were not properly taken care of by estate planning would go through intestacy to the decedent’s heirs.  Heirs include descendants, spouses, parents, children and, maternal and paternal kindred.

Estate Planning to Avoid Probate

The best way to avoid probate is by doing estate planning.  If a decedent established a trust and funded the trust with assets, probate could be avoided. A trust is where one person holds something for the benefit of someone else.  Assets held in trust would not need to go through probate since the trust is under the control of another person who is in charge of distributing the trust based on the trust agreement (called a trustee).  However, there would be a need to probate property if it was not properly transferred to a trust or if the trust is invalid.


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