It is important to be prepared for when a loved one passes away. The estate of the deceased goes through a court-managed process called probate or estate administration. Below are a few common questions about Probate.
What is Probate?
Probate is the legal process of settling your estate in court after you die. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs or beneficiaries. Your personal representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you.
Probating a will begins by filing a petition with the probate court. Probate ends when all debts and taxes are paid and all assets are distributed. If there is disagreement over your will, a probate judge will resolve the differences.
When is probate necessary?
Probate laws in Florida apply to the estates of people who were residents of Florida at the time of their death. Probate also applies to other states’ residents who own real property in Florida. Having a will does not avoid probate. The need for probate depends on what property you own and whether you own it alone or with others.
Real estate
Unless real estate is owned in joint tenancy with right of survivorship or placed into a trust, it must be probated. Joint tenancy means that the property is owned by two or more people who have an undivided interest in the property, and that interest continues in the survivor after other owners die. If you are a resident of Florida and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.
Personal property
If your estate is worth less than $75,000, your state may qualify for summary administration, an abbreviated probate process. If your estate is less than the sum of the preferred funeral expenses (up to $6,000) and the medical expenses of the last 60 days of the last illness, your heirs or beneficiaries may be able to collect the property without hiring an attorney by using a procedure known as Disposition without Administration.
What items are not subject to probate?
Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension or retirement benefits with a designated beneficiary.
Joint tenancy property
As discussed previously, holding title to property in joint tenancy with rights of survivorship means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this fact would be stated in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and appropriate affidavits to support the survivorship and/or absence of estate tax liens against the property.
Jointly held bank accounts
As in joint tenancy of real property, you and one or more people may be listed as account holders of the same financial account. If one of the joint account holders dies, the other joint account holders own the money in the shared bank account.
Payable-On-Death accounts (PODs)
A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You may set up a POD by contacting your financial institution. You may change the beneficiary by completing a new signature card at any time.
How do I probate an estate?
Your personal representative starts a probate proceeding by filing petition with the probate court in the county where the decedent was domiciled at the time of death. As stated above, the services of an attorney will be required in order to probate an estate unless the estate qualifies for Disposition without Administration.
There are many details that are important to consider when planning for the estate of your loved ones. At the Estate, Trust and Elder Law Firm we carefully exam all the details to make sure things are handled properly. Call us today at 772-878-7271 and we will send you our Consumer Guide to Probate and Trust Administration.
The Estate, Trust & Elder Law Firm assists clients with Estate Planning, Wills and Trusts, Advanced Estate Planning, Elder Law, Medicaid Planning, Veteran's Benefits Planning, Probate / Estate Administration, Special Needs Planning, Business Formations, Adult Guardianships, and Prenuptial Agreements in Port St. Lucie, Florida as well as Jensen Beach, Palm City, Fort Pierce, Stuart and Port Salerno in Martin County and St. Lucie County.
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