Do All Florida Deaths Go Through Probate?
Updated: Nov 16, 2021
While Florida probate rules are slightly different from those of other states, the probate process in Florida has the goal to distribute assets correctly to beneficiaries just like in other jurisdictions.
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The Florida probate process involves the following:
Proving the validity of the Will in a probate court
Identifying the legal heirs of the estate if the decedent died without a Will
Distributing the deceased’s legal assets to heirs or beneficiaries
Paying the debts of the deceased
Paying the funeral costs of the decedent (deceased individual)
Paying the probate proceeding’s cost using resources from the estate
There are three types of probate administration in Florida: formal administration; summary administration; and disposition without administration. People often file petitions in which they challenge the Will during the probate process.
This is a formal proceeding and the standard and most common form of probate. It takes place in a court of law in the county where the deceased person lived upon his/her death. The process begins when a person passes away and the executor or another interested party asks to be named the personal representative that helps settle the decedent’s estate. Any beneficiaries named in the estate are given notice and a time to appeal that decision.
Summary Administration is often used when assets are valued at less than $75,000 and/or if the death of the person whose estate needs to be settled passed away more than two years ago (or in the event of a person who has been missing for a length of time and then declared legally dead). Long story short, summary administration is an expedited version of the formal administration.
Disposition Without Administration
This non-administration type skips the probate process entirely due to a specific or unique set of circumstances. This type of probate is rare and can only occur if no real estate is involved in settling a deceased person’s estate.
Do All Estates Go Through the Florida Probate Process?
Only probate assets go through probate. Most assets are considered as probate assets in Florida, and they include:
Real estate owned solely by the decedent
Investment account and bank account titled in the name of the decedent alone
An annuity contract, life insurance policy, or individual retirement account payable to the deceased person’s estate
Assets jointly owned by the decedent and another person do not go through probate because the joint owner inherits them immediately after the decedent dies. Any asset that has designated beneficiaries, such as assets of a transfer-on-death (TOD) designation, also does not go through probate. If the decedent had created a Trust and passed assets to that Trust, those assets will not go through probate.
What Happens When There Is No Will?
When there is a valid Will, heirs or beneficiaries receive their share of the decedent’s estate according to instructions in the Will. But when there is no Will, the assets become “intestate.” That means that the Florida probate court will decide how the assets will be divided. The probate court will decide who gets what in the following ways:
When there is a surviving spouse but no children, the surviving spouse receives the estate.
The surviving spouse still receives the entire estate if the decedent is survived by a spouse and their children.
If there are children that the decedent had in a previous marriage or relationship, the spouse that is still alive will inherit half the estate and the children will share the remaining half.
The estate passes to the decedent’s parents if the decedent was not married and had no immediate family members.
If there is no close relative, distant relatives may be able to inherit the decedent’s estate.
Who Can Qualify as an Administrator If There is no Will?
The probate court appoints the administrator of the estate if the decedent died without a Will. The administrator is in charge of paying debts owed by the estate and distributing the estate to heirs, among other roles. An individual can be chosen as an administrator if:
The individual must be at least 18 years old.
They have no history of serious crimes.
They had no business relationship with the decedent when the decedent was alive.
People who are non-citizens can serve as administrators in some situations.
If you find yourself involved in a probate matter in the State of Florida, you will need to find an experienced attorney who can help guide you through the steps of the Florida probate process.
Elder Law, P.A. has the motto of being the place “where knowledge and compassion meet to protect your legacy.” In the State of Florida, it is legally required that you have an attorney to represent you at a probate hearing. There are only a very few exceptions to this rule. It is good to have Florida probate rules in place to help better protect the assets and estate of a person after death.