If you have unfortunately lost a loved one, then we first offer our condolences. Having said that, we provide you with this guide on what exact steps you will need to take in order to acquire your inheritance, given that you live in Florida. What’s more, this guide will explore the entire process of probate in Florida.
It will also provide answers to questions such as; “according to the law, what assets must go through probate?”, “who has the legal right to take over those assets?”, “and what steps must be taken in order to acquire those assets?” So without further ado, let’s begin.
What is probate?
Probate, often known as “estate management,” is a legal procedure used to distribute a decedent’s assets to heirs who are still alive. In Florida, a person’s possessions pass to their family or, if they make a will, to the people specified in it.
The deceased individual is referred to as the “decedent” in probate. The term “estate” refers to all that the deceased person possessed at the time of their death.
Bank accounts, real estate, automobiles, firearms, equipment, jewelry, and any other possessions held at the time of death can be found in an estate. If a decedent had a legitimate will, the document specifies who would oversee the probate procedure and receive the decedent’s assets after death.
In the absence of a will, a person’s estate will be distributed to their closest relatives (the intestate heirs).
Even when a deceased leaves a legal will, probate is still required. A probate court must “admit the will” to probate when a person dies with a will by first making sure that the will is legitimate. Once the estate has been opened in court, the probate judge can only pass over the property in accordance with the will.
In legal terminology, “beneficiaries” are individuals mentioned in a will, whereas “heirs” are the people who inherit property when there is no will. The aim of the court is to make sure that the right beneficiaries or heirs are found so that they may receive the property, regardless of whether a deceased died with or without a will.
When it comes to Florida specifically, there are generally two types of probate administration. Formal administration and summary administration. Summary administration tends to be more of a simple process when compared to formal administration.
This is because, in formal administration, there are a few more requirements for certain estates. These requirements include the need for a personal representative like a lawyer or when the estate is relatively bigger than most. In any of these cases, you will have to go forward with a formal administration.
What happens next?
Once the court has successfully identified the right beneficiaries or heirs of the deceased estate and all the necessary paperwork has been submitted to the court, the judge will green-light the process of transferring over the estate to its rightful owners.
But in order for this to go as smoothly as possible, the judge also has to make sure that all other parties involved have received appropriate notices and that they are ultimately satisfied with the decision. In addition to that, the judge must also be convinced that any disputes among the parties have been resolved before moving on to the next step.
What assets must go through probate in Florida?
In general, all assets and property which was owned by the deceased must go through probate. However, there is an exception when a specific asset was named after a beneficiary or had a right of survivorship.
A few examples of assets with a beneficiary include life insurance, a bank account with a designation of “pay on death,” or a retirement account. As for the rights of survivorship, it generally applies when there is a deed indicating that a living co-owner of an estate is to be handed over the full rights of ownership upon the deceased’s death.
In Florida, property bought by a husband and wife usually carries the rights of survivorship, even if that particular statement is not on the deed.
Tenancy, by its entirety, is often known as this sort of survivorship, which simply requires that the title be held by the husband and wife. And as a result, it will immediately pass to the survivor following the passing of one spouse.
Florida Probate Rules
According to the Florida Probate Rules, if an asset does not have rights of survivorship or a specified beneficiary, it must go through probate in order to change ownership (2022).Bank accounts, personal possessions, automobiles, and real estate are some of the assets which go through this process the most frequently.
It is best to get in touch with the financial institution where the account was formed in order to find out if a certain bank account is subject to probate. And when it comes to deciding if real estate is subject to probate, a professional attorney should analyze the deed to the property.
Florida’s Probate Jurisdiction
Florida Statute section 733.101 determines where a probate case is handled. A probate case for a deceased who was a Florida resident must be filed in the area where they lived when they were still alive. An out-of-state resident may file a probate case in the area where the deceased person bought the property.
Only real estate located inside the state of Florida may be distributed through Florida courts. Also, a probate court only has authority over assets that belonged to the deceased. But, until legal ownership is established, a circuit court may order the detention of assets that have yet to be confirmed if they belonged to the deceased.
How often do you have to go to court?
Clients are often not required to physically attend court when conducting probate in Florida. Some might be relieved to know that clients can attend important and necessary court hearings through a telephone conference call or through a video call.
Final thoughts (a piece of advice)
A smooth and hassle-free estate administration can only be achieved with the help of a competent probate attorney, or otherwise, it can go horribly wrong. Dealing with the death of a loved one is already a very difficult thing to bear, so why make it worse through improper legal representation?
It is a wise decision to hire a professional probate lawyer who will help make this difficult time less challenging. It is the responsibility of every attorney to advise their clients on the laws that are relevant to their case, to present that case in court, and to obtain the best outcome possible by the particular law. So get in touch with a good lawyer, and make your life easier.