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Knowing Your Worth: Comprehending Your Probate Assets and How To Allocate Them in Your Will

Updated: Dec 27, 2023


Probate is a process which is used to prove the validity of a will and to carry out the instructions of the deceased stated in the will. It is overseen by the court and is used to identify and distribute the assets of the deceased's estate.



Photo: Joshua Hoehne


Explaining Probate: An Overview


The court-supervised process of probate is responsible for identifying and gathering the assets of a deceased individual, paying their debts, and distributing what is left to their beneficiaries. Generally, the costs of probate, the funeral expenses, and the debts are taken care of first, and then the remainder of the assets is apportioned accordingly. The Florida Probate Code can be located in Chapters 731-735 of the Florida Statutes, and more details about probate proceedings in the state can be found in the Florida Probate Rules, Parts I and II (Rules 5.010-5.530).


Under Florida law, two forms of probate administration are recognized: formal and summary. This pamphlet will focus mainly on the formal type.


A type of administration known as "Disposition of Personal Property Without Administration" exists that does not require court supervision. This form of administration is only applicable in certain situations.


WHAT ARE THE PROPERTIES THAT GO THROUGH PROBATE?


Probate administration only applies to the possessions owned solely by the decedent when they passed away or which were jointly owned by the decedent and other people without a succession of ownership clause. Possessions which may be subject to probate include:



  • Probate assets include bank accounts and investment accounts solely owned by the decedent. However, if the account is held jointly with another person and has rights of survivorship, it is not a probate asset.

  • Life insurance policies, annuity contracts, and individual retirement accounts that are payable to the decedent's estate are probate assets. On the other hand, those payable to a beneficiary are not.

  • Real estate solely owned by the decedent, or owned jointly with another person as tenants in common, is a probate asset. Whereas, real estate owned jointly with one or more other persons as joint tenants with rights of survivorship is not a probate asset. In addition, property owned by spouses as tenants by the entirety is not a probate asset when the first spouse dies, but goes directly to the surviving spouse.


WHAT ARE THE REASONS FOR PROBATE TO BE REQUIRED?


A probate procedure may be necessary to transfer the decedent's assets to the named beneficiaries. If the decedent left a valid Will, the court will pass the Will to probate in order to pass the assets on. If there is no Will, the court may require a probate for the assets to be distributed in accordance with Florida law. Certain assets do not necessitate a probate proceeding to transfer ownership - in this case, it is recommended to contact a probate attorney for advice.


The process of probate is often required to settle the financial matters of the deceased. The administration of the estate must comply with certain guidelines in order to guarantee the payment of the decedent's creditors.


What is the Purpose of a Will?


In accordance with Florida law, a Will is a document signed by the decedent and witnesses that sets out the decedent's wishes regarding who will receive their probate assets. Additionally, the decedent can choose an individual to serve as their personal representative to oversee the probate estate.


WHAT RESULTS IF A WILL IS NOT PRESENT?


A person who passes away without a legally sound Will is referred to as "intestate." In the event of intestacy, the decedent's probate possessions are normally not given to the state of Florida. The state would only acquire the decedent's possessions if there are no surviving heirs.


In the event that the decedent did not leave behind a will, two examples of how the probate assets will be distributed to the descendants are found in Part I, Chapter 732 of the Florida Statutes.


  • If the decedent was married but had no living descendants, the surviving spouse will receive all of the estate. A descendant is someone in any generational line down from the decedent, including children, grandchildren, and further relatives.

  • When the decedent was married and had one or more living descendants (who were descendants of both the decedent and the spouse), the surviving spouse will get all of the probate estate.

  • If the decedent was not married but had one or more living descendants, those descendants will inherit the estate and it will be split among them as prescribed by Florida law. If one of the decedent's children passed away before them and had living descendants, the estate will be split between those descendants instead.

  • If the decedent had no living descendants and wasn't married, the estate will pass to the surviving parents, if any, otherwise to the decedent's siblings.

  • If the decedent is not survived by any of the close relatives mentioned above, Florida's intestate laws will pass the estate to other more distant heirs.


Navigating the probate process can feel daunting, but it is possible to get through it all and prepare yourself and your family. Contact the offices of Olivia S. Benson, Esq., for a free 15-minute consultation on your case.



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