What is probate?
Probate is the legal process of transferring a decedent's property following a person's death. Probate is governed by the Fla. Statutes Chapter 731 through 740 and the rules of civil procedures known as the Florida Probate Rules and administered in the Circuit Court in the County where the decedent lived.
Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a Will); his or her property is collected, certain debts are paid from the estate, and the property is distributed accordingly.
The probate process also ensures that creditors are fairly treated and paid against the probate assets only. In general, formal probate is a court-supervised process that:
Authenticates your Last Will and Testament and issues the Order Admitting Will and Appointing the Personal Representative (Fla Statute 733.201).
Determines if the Personal Representative must serve under a Probate Bond.
Determines who the heirs are to the decedent by issuing Order Determining Heirs (Fla Statute 733.105)
Officially vests the powers in the Personal Representative to settle creditor claims and take possession of the decedent's property by issuing Letters of Administration.
Oversees that known ("ascertainable") creditors and unknown creditors to the Estate are given property notice of the proceedings and administers a structured process for the potential claims to be validated by the Personal Representative.
Reviews the inventory of the probate assets filed by the Personal Representative.
Reviews and Approves the Sale of Real Property of the decedent.
Oversees and approves the Plan of Distribution by the Personal Representatives.
Discharges the Personal Representative from further responsibility at the end of the administration.
What are probate assets?
The probate process generally involves assets in the decedent's probate estate, which includes only those assets in the decedent's individual name. Good examples of probate assets are real property, bank accounts, automobiles, or after-tax investment accounts only in the name of the decedent.
The probate process does not generally include assets jointly held with rights of survivorship and other assets distributed by contracts such as life insurance, annuities, IRAs, and 401Ks. These assets are called "non-probate" assets and are distributed to the surviving co-owner or the designated beneficiary without the estate's involvement. These assets are administered under informal estate administration.
Are all probate administrations the same?
No. The correct course of action for a probate administration is based on several different factors, such as the dollar amount of the assets administered, how long it has been since the decedent died, and what is the outstanding debts of the decedents, and if there are disagreements between the potential heirs. An experienced probate attorney can guide you on the most efficient and appropriate type of administration necessary in your case.
In Florida, there are three types of probate administrations, and each probate process is unique:
Disposition Without Administration
Formal Administration (or Formal Probate Administration)
And for those decedents that maintained their primary residence outside of Florida but owned property in Florida, it may be necessary to conduct an Ancillary Estate Administration.
When someone you love dies, it can be overwhelming on what the next steps need to be to settle their affairs. We are here to guide you through the process and address all of your concerns. We will explain how Florida probate laws apply to your case in a way you can understand.
Give us a call. We can help.
Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.
