Is Probate Required in Florida?
Updated: Oct 26, 2021
Is probate ALWAYS required in Florida? The simple answer is no - not all estates have to go through probate, but many do. Florida probate rules dictate that certain assets must pass through probate after the owner’s death to help ensure all of the individual’s assets are legally transferred to the heirs. The problem, though, is that the Florida probate process can take months to complete. When is probate required, and what does the process look like? Keep reading to learn more.
What is Probate?
It might help to begin with a better understanding of the term probate. If you’re unfamiliar with the term, probate is a legal step that first involves totaling the deceased individual’s assets, paying off any liens, creditors, and taxes, and then distributing the remaining assets to the heirs. It is the most common way of transferring assets to heirs after death. Some people may not have any plans for their assets, so probate is required to make sure the assets go somewhere. Probate is a legal process, and ultimately it is the courts who decide how the assets will be divided and distributed. Moreover, the courts will also determine that any creditor, lienholder, and debts owed by the descendant be paid first before the assets are dispersed to the heirs.
However, probate is not a simple process; not only is it time-consuming, but it also requires extensive documentation, including selling any properties, addressing the lien holders, liquidating assets, and distributing what is left to the heirs. The entire process can take anywhere from 4-9 months; simple cases can be completed within 6 months, but more complex cases can last 9-12 months or even longer.
Understanding Florida Probate Rules
In Florida, probate is only required if there are probatable assets. Probate assets are referred to as those that are held only in the deceased individual’s name- meaning there is no beneficiary, the assets are not held jointly, and there is no trust.
Types of probatable assets:
A home only in the name of the deceased
Bank or investment accounts only in the decedent’s name
A collection of artwork, paintings, etc
A motor vehicle only in the name of the deceased
The contents of a deposit safety box
In these scenarios, the assets cannot be legally distributed by any person, including the member of the deceased’s family. Instead, one has to go through probate court first to acquire possession of the assets and then have them legally distributed according to the court.
Probate is also deemed necessary when the deceased individual owned assets, but there is a pending personal injury and wrongful death action lawsuit. One cannot go ahead with these claims without a probate case being filed. Even if the deceased individual had no properties, financial accounts, or investments, probate is almost always required if there is a pending wrongful death action lawsuit.
Are Some Assets Exempt from Probate?
Not every asset must go through the Florida probate process. Some assets are entirely exempt. Here are the three most common that remain exempt from the process.
Jointly Owned Property: any property owned jointly by the decedent and another living person (most often the spouse) is directly passed to the survivor under the ‘right of survivorship’ law. Besides the jointly owned home, joint tenancy may also include bank accounts, investments, vehicles, etc. The survivor or spouse must have had their name on the joint tenancy papers when the decedent was alive to avoid probate.
Accounts with a Designated Beneficiary: In Florida, the law allows residents to add a ‘payable on death' designation to their savings, checking, and retirement accounts. In addition, the same can be done on life insurance policies and certificates of deposits. The key is for the decedent to have designated a beneficiary while alive. After death, the money is automatically transferred to the named beneficiary without probate.
Revocable Living Trusts: The law in Florida allows assets that are held in a living trust to be passed to the heir(s) without the probate process. The key is to create a living trust while alive. Then all assets should be included and transferred to the trust. As long as you are alive, you will remain in charge of the trust, but your successor will be in charge of the assets in the trust after your death. Having a living trust is perhaps the best way to avoid probate after your death.
Consulting a Probate Attorney
Probate usually requires assistance from a lawyer, and there is a fee associated with it. If all this sounds too confusing, consult with a probate attorney who can guide you through the probate process. In addition, they will also educate you on steps to take if you want to avoid probate for your heirs.