Probate is a process that is supervised by a court system to ensure that property left behind after the owner passes is distributed fairly and correctly. Probate assets are described as those that are owned by the deceased upon death that are not set up to automatically transfer to someone else. For instance, under the Florida Probate Code, Section 732.402, the surviving spouse (if the deceased person was a Florida resident) or if there is no spouse and there are surviving children, he/she/they may be entitled to a share of the estate before any creditors’ claims are made.
EXEMPT PROPERTY IN FLORIDA
Assets exempt from probate in Florida include home furnishings in the main residence, up to $20,000 in value; two motor vehicles if in the decedent’s (deceased person’s) name and were used regularly (each not weighing more than 15,000 pounds); tuition programs that are qualified under the IRS Code, Section 529; and some types of educator death benefits. Again, those persons who might be entitled to assets exempt from probate in Florida include the surviving spouse, or, if no surviving spouse, then the children of the decedent.
An exception to an exempt property might occur if exempt property is left to a person in a will and that person would not ordinarily have been exempt to the property, then the property becomes non-exempt. Other than that, the property would be exempt.
Assets that are exempt from probate in Florida include:
- Revocable Trusts. In a revocable trust, beneficiaries are designated; therefore, assets named in a revocable trust are exempt from probate.
- Designated Beneficiaries. Assets where beneficiaries have been designated to receive that asset upon the owner’s death are exempt from probate, unless the estate itself is listed as the beneficiary.
- Transfer on Death. If the owner of a bank account or property so designates that a certain beneficiary receives that asset upon the owner’s death, that’s what will happen, and no probate will be involved.
- Joint Title with Rights of Survivorship. Both real estate and bank accounts can be titled as Joint Title with Rights of Survivorship. When an asset is titled in this way, it is exempt from probate.
- Tenancy By Entireties. When married, upon the death of one spouse, the surviving spouse will automatically be designated the owner of the asset. The law states that an asset that is owned jointly by a married couple shall be treated as a Tenancy By the Entireties and will be exempt from probate unless the asset were to be specifically designated to another beneficiary.
- Florida Homestead. In Florida, the primary residence is also known as a homestead. This property asset can become complicated to assess if the deceased person was married at the time and/or minor children are involved. If the homestead property is not automatically transferred through a Revocable Trust, beneficiary designation, is titled jointly with Rights of Survivorship, or is titled as Tenancy by Entireties, then it is likely that it will have to go through probate.
ASSETS THAT MUST GO THROUGH PROBATE
Assets that are subject to probate in Florida include anything that is only in the decedent’s name, such as a bank or investment account; a life insurance policy; an individual retirement account left only to the decedent’s estate (that has no specific beneficiary); an annuity contract with no beneficiary assigned; or real estate with only the decedent’s name on it. If the real estate has another person listed on it as “tenants in common,” that is considered a probate asset unless it is a primary residence (also known in Florida as a homestead property). Property designated as being owned by “tenants in entirety” goes automatically to the surviving spouse and does not have to go through probate.
What assets are exempt from probate in Florida? What assets are subject to probate in Florida? If you need more detailed or specific answers to these questions, talk to a Florida probate attorney. Contact the knowledgeable probate attorneys at Elder Law, P.A. now.