Why You Need Probate

Once someone passes away, their assets (including property, investments, bank accounts, etc.) go through a court-supervised process called probate. The decedent’s (deceased person’s) assets become part of an estate, and probate courts handle the administration of the decedent’s estate whether or not they have a will.

But is probate necessary?

Probate is required anytime someone passes away and they have assets that are in their name only. Whether the decedent left a valid will or not, the court probates the assets within the estate.

Wills and Probate

Whether there is a will or not, the court will supervise the probate process and ensure that the personal representative (or executor) pays the estate’s expenses and creditors, and distributes the assets to the beneficiaries accordingly.

If there is no will in place, the probate court must identify the appropriate heirs to the estate. Florida statute then determines who receives the decedent’s inheritance.

Probate for Estates

With smaller estates, it is possible that probate can be done through summary administration (or a simplified probate process that is more efficient and can be carried out when the person has been dead for over two years and all creditor claims of the decedent are barred by the statute of limitations, or when the value the estate subject to the claims of creditors is $75,000.00 or less).

Most estates in probate court in Florida, however, go through a more lengthy and complicated process called formal administration. In these cases, it is advisable to get the help of a probate attorney to streamline the process of getting inheritance.

How To Avoid Probate Court

The formal administration process can take months, or even years, and it happens in a public court setting. These are reasons why many families might want to avoid probate court all together.

Since the only assets that go into probate are the ones solely in the decedent’s name, there are ways you can avoid probate court, including:

Create and transfer assets into a revocable trust;
Hold real estate assets as:
- joint tenants with rights of survivorship
- or as “tenants by the entirety” where both spouses are treated as owning an undivided 100% interest in the asset (according to Florida law);
Transfer ownership of property and assets to the beneficiary while still alive (although this could have some negative tax consequences);
Designate beneficiaries on retirement accounts, annuities, and insurance policies; and/or
Create a joint account with rights of survivorship with the intended beneficiary.

Most of the options outlined above allow probate assets to be automatically transferred to the intended beneficiaries without the need for probate. There may be legal limitations or considerations that Easy Estate Probate can help you navigate.