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April 5, 2021

Probate: When You Don’t Need It, When You Do, and What to Expect.

Even though probate is a standard legal process in Florida, formally transferring assets from a deceased loved one to their beneficiaries can be complex. A frequent question that many families ask is if probate is always necessary or can they take care of the decedent’s property and estate assets on their own. The answer is equally complicated. While going through Florida probate to legally transfer ownership from the deceased to an heir is not always necessary, but knowing when it is or cannot be confusing.

What is the Purpose of Probate in Florida?

As mentioned earlier, probate is the legal process of legally passing ownership of assets. Depending on the estate’s size, this can be a straightforward or overly involved proceeding that takes place after someone has died, leaving behind the property that needs to have ownership transferred. If there is a will, the court will also ensure its provisions are followed, and in cases there is not, then state intestate laws will apply.

It is important to remember that many types of assets won’t be subject to a probate proceeding and can go directly to their new owners instead. This could include some of the following:

  • Property held in joint tenancy
  • Assets with a legally designated beneficiary
  • Living trust assets

It would be best if you also remembered that regardless of probate being necessary, state law demands that anyone with a decedent’s will file it with the local court within ten days of learning of their death. If it is determined that a probate proceeding is required to manage the estate, the presiding court will determine the validity of the will.

When is Probate Not Necessary in Florida?

There are occasions when probate is not necessary for Florida, and this usually is due to final expenses being more significant than the property value of the estate. Also called a Disposition without Administration, this process will consider funeral costs, customary medical expenses from the past two months as part of this final expense if they occurred within two months of the decedent’s final illness.

To be more specific, a Disposition without Administration is only available when:

  • The decedent left no real estate, and,
  • Assets don’t exceed final expense costs, or they are considered exempt from creditors under Florida law.

You will still have some paperwork to fill out and submit to the court, along with any requested documentation of the assets.

When Should You Probate A Will in Florida?

Deciding if a Florida estate should go through probate or not is not always obvious. When determining if a will needs to go through this process, besides being submitted to the local circuit court, consider some of the following situations that would warrant beginning a probate proceeding:

  • There are untitled assets that require probate to transfer ownership legally
  • If a wrongful death claim can be made, then only the estate’s representative can file
  • If the decedent had ongoing litigation before their death
  • Situations involving disputes over the decedent’s property and assets
  • The value of the assets exceed final expenses or are not exempt from creditor claims
  • The creditor claim period has ended

What to Expect During a Florida Probate Proceeding

Florida probate law seeks to ensure that a will is valid and that the assets are distributed according to its provisions unless the decedent died intestate (without a will). In this situation, the court would appoint an administrator and oversee the probate process to completion.

Generally, there are two ways to accomplish this goal:

Summary Administration

This is a more streamlined and cost-effective probate process for estates in Florida. You can use this option under two conditions:

  • The decedent passed away over two years before filing, or,
  • The total probated property does not have a value of more than $75,000

In these cases, state probate courts do not appoint an executor or administrator for the estate but order the property released to the heirs.

Formal Administration

Should a decedent’s estate not qualify for a Summary Administration, then a formal probate proceeding will occur. This usually starts with the designated executor in the will approaching the court to be officially appointed. Any beneficiaries or heirs will receive notice of this action and be given time to file any objections they might have.

Once settled, the court will send Letters of Administration to the estate representative, so they have the authority to perform their duties on behalf of the decedent. The court will also determine the validity of the will and then have the executor or administrator gather information on all the assets and then have it all inventoried. This person will also have to pay any debts and remaining taxes on the estate before sending a final accounting to the court. In this report, they will outline how the assets were managed and distributed to the beneficiaries.

Once distributed, a final accounting of distributions is sent to the probate court with a request to close the estate. Once approved, the proceeding is concluded, and the personal representative has fulfilled their duties. On average, a Florida probate process can take up to a year if there are not disputes involved.

Learn How the Florida Probate Process Can Affect Your Estate

Trying to determine what estate plan strategy will provide the most effective asset protection and provide the most straightforward probate process for your loved ones. You may decide that you want to avoid this frustration altogether and learn more about what trust options are available to you.

The Legacy Law Firm attorneys have years of experience helping families and businesses throughout the Sunshine State create multi-generational trusts and legacies their loved ones need as well as assisting with probate matters. We help you make informed decisions to ensure you avoid common pitfalls that can subject your loved ones to drawn-out probate proceedings that are costly and delay estate distribution. Call us today at (954) 999-9683 or contact us online to discuss your unique situation, learn more, and get started.


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