Probate Made Easy
We know how complex and overwhelming the probate process can be. We also know that you want to get it over with as fast and painlessly as possible. That’s why we provide representation that makes it possible for you to focus on what’s really important, with the peace of mind of knowing that every step of the probate process is under control.
Here are some of the most common questions that clients ask about probate in Florida.
WHAT IS PROBATE?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
WHAT ARE PROBATE ASSETS?
Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
For example:
A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
Property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative.
WHY IS PROBATE NECESSARY?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those who are to receive them under Florida law.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
WHAT ARE THE FIRST STEPS OF THE PROBATE PROCESS?
The probate process generally beings with filing a petition in the probate court where the decedent lived (or owned real property). However, before filing the petition, there are few steps that should be taken:
Locate the Will: If the decedent had a will, you’ll need to locate the original as it is required to be filed clerk of the court having venue of the estate of the decedent within 10 days of receiving information that the testator is dead.
Gather and Safeguard Assets: Make appropriate arrangements to secure the decedent’s residence, vehicles, and other property. Do not let anyone remove items of clothing, jewelry, personal documents, or other property from the decedent’s residence.
Notify Financial Institutions: To protect against fraud, notify the decedent’s bank, credit card company, and other financial institutions that he or she has passed away.
Collect or Forward Mail: Collecting the decedent’s mail helps to prevent potential identify theft from third parties who might have access to his or her mailbox. It can also help you identify the decedent’s assets and debts as account statements and bills arrive by mail.
Order Death Certificates: Order them as early as possible to avoid unwanted delays in administering the estate. It’s a good idea to obtain 5-10 certified copies of the death certificate.