What is Probate?

Florida probate is thought of, or may be described as, the process of passing on one’s property at death through a court supervised proceeding. This proceeding is commonly referred to by Florida estate lawyers as “opening up probate“. Someone who has an interest in a Florida estate may open up probate by filing a petition for administration with the clerk of the courts in the county where the Florida resident died, or where Florida property is located.

Not all property which you own at death may require a probate court process to be given away at death. There are many will substitutes which pass to a beneficiary automatically, by operation of law, at one’s passing. Perhaps the most common “will substitutes” which avoid Florida probate, most of the time, are life insurance, annuities, pay on death accounts (also called POD), transfer on death, or TOD, accounts, so called Totten Trusts, joint accounts with a right of survivorship and beneficiary designations on such things as mutual funds, IRA’s and retirement accounts. For example, many married couples hold title to real estate as joint tenants with the right of survivorship, or as tenants by the entirety. Some Palm Beach probate lawyers suggest that checking accounts or savings accounts be titled as joint tenants, or as a joint tenancy, with a survivorship provision. Will substitutes may be a part of one’s Florida estate plan, along with a will or other documents. Perhaps the most common form of leaving property at death is through the use of a Florida revocable trust, also called a living trust or revocable living trust. Ask your estate planning attorney about how a trust may fit into your estate plan, and whether one is right for you. Like other will substitutes, a living trust can avoid probate, although the future, or successor, trustee, or personal representative of an estate, should file a “notice of trust” under the Florida probate code upon the trust creator’s passing. Probate litigation law firms in Florida will tell you that, although will substitutes are intended to “avoid” probate, that does not always happen. Why? Well, families, heirs at law, next of kin, beneficiaries, prior beneficiaries, and dis-inherited family members often fight over property and money when someone passes away. This leads to probate litigation over such things as joint accounts, life insurance, IRA’s and revocable living trusts. Estate lawsuits, then, are not limited to will contests or challenges to a last will, or even a challenge to the probate.

What else should you know about the probate process in Florida? To put it another way, probate includes the process of paying the last debts and expenses of someone who just died a resident of Florida, then finding and gathering that “decedent’s” assets, and distributing them. How does a Florida resident’s property get passed at death? Well, first you have to gather the assets. That may take some time, since not everyone always knows every single asset that a person owns. After you gather the assets of a decedent, you should analyze what debts of the decedent should be paid. Estate lawyers in Florida will tell you that the most common debts are one’s mortgage on Florida real estate, one’s last, or final, federal income tax bill, real estate taxes and expenses associated with home ownership, credit card bills and any outstanding loans. The executor of the estate, called a personal representative, or the person’s successor trustee of his or her living trust, will be charged with paying the last debts of a Florida resident, after they have died. In addition, before a beneficiary of the probate sees a dime of an inheritance, you also have to pay the expenses of administering the estate. These expenses or costs can include funeral expenses, probate lawyers fees, accountant fees and related expenses to finding the property and paying debts. To read more about the administration of Florida estates, and the probate process, you can click here which takes you to one chapter of the Florida Statutes on administering estates.