The Latest from Our Firm

January 16, 2021

What is the Purpose of Probate?

It is a common assumption that a will guarantees a loved one will receive their share of an estate with little issue. Unfortunately, this is not the reality in Florida. If you pass away, with or without a will, it will likely need to go through probate to be reviewed and ensure it complies with state law. If it does not meet those requirements, your entire estate may end up going through a costly probate court process anyway. Worse, relatives you never intended to receive your assets could end up with the majority of them.

What is Florida Probate?

Having an understanding of how the Florida Probate Rules can affect your or a loved one’s estate is critical when planning your will or trust. The purpose of probate is to allocate assets according to a decedent’s will if one exists. If there is no will, state intestacy laws take precedence instead. It will also ensure that any debts owed to your creditors get settled from your estate before distributing the remaining goods that are left.

Working with an experienced estate attorney will help you gain a grasp of what beneficiary rights are available in the Florida Probate Code, as well. For matters involving guardianship and probate proceedings, the Florida Probate Rules Part I will apply.

Typically, any assets left by a decedent will first pay for any expense related to probate fees, then funeral costs, followed by outstanding debts, and then the distribution of the remaining assets to any heirs. There is the potential for federal estate taxes being due on your estate, as well, when going through the probate process.

Three Types of Probate in Florida

The state of Florida has three forms of probate processes:

Formal Administration

This type occurs in the decedent’s jurisdiction at the time of death in their county circuit court. Typically, a personal representative or executor who will ensure an accurate valuation of the estate happens will pay outstanding creditors and distribute funds to the appropriate heirs.

Summary Administration

In probate cases where estate assets are less than $75,000, and the decedent passed away two or more years previously, a summary administration may be available. This process is usually much more inexpensive and quicker than usual.

Disposition without Administration

Under certain circumstances, it is possible to skip the probate hearing entirely. This is normally reserved for individuals who die with no real estate, and the value of which is less than the cost of probate expenses.

It is important to note that many assets will never need to go through the Florida probate process. Assets that have transfer-on-death or pay-on-death provisions pass straight to the assigned beneficiary upon the owner’s death. Trust assets are also a separate matter from probate and will get distributed according to the terms of the trust.

How Long Does the Florida Probate Process Normally Take?

The length of time it takes to complete the Florida probate process can vary greatly and be impacted by several factors. Estates having a significant amount of assets to distribute, numerous claims to address, including legal challenges, can lengthen the entire ordeal. Even though it is possible to have a probate case wrapped up in a month or so, the reality is it will likely go longer.

Limitations in the Florida Probate Process

Like many laws, Florida Probate law has its own flaws and weaknesses. There are critical deadlines to meet when appointing a personal representative to an estate, as well as when filing a suit. If a party waits to file a claim until two years after a decedent passes away, the assigned executor is not liable. Further, beneficiaries can refuse to pay creditors if their claims come three months after receiving notice.

As you can see, Florida probate estate cases can get quite complicated. Some of these limitations could even lead to family infighting, legal challenges to distributions, and more. These situations are why working with an experienced probate attorney is vital when planning your estate.

How Can I Avoid Probate?

Because Florida law requires all last will and testaments to be reviewed and approved by a probate court, using other estate planning options, like a trust, is your best option to avoid the process entirely. Another way to prevent unnecessary probate proceedings is to consult with an experienced Florida estate planning attorney to help you develop a comprehensive end-of-life plan.

Working with a knowledgeable legal professional, like those at Legacy Law Firm, can help you better prepare your assets to avoid the probate process altogether. Several types of assets can get distributed separately or have different distribution rules that work around probate, including:

  • Assets held in a trust that not only can offer you complete control until you pass away but are customizable for each heir you wish to provide support upon your death.
  • Life insurance death benefits that can have a designated beneficiary who receives a payment when you die.
  • Payable-on-death accounts like retirement savings, checking, and other financial assets that you can assign a beneficiary to receive.
  • Transfer-on-death property deeds so your titled assets can directly go to your loved one named the beneficiary on the recorded deed.
  • Joint tenancy arrangements for real estate you share with a spouse, business partner, or loved one.

Consult with Experienced Florida Estate Planners Today

If you have not begun planning your estate, you must start sooner than later to safeguard against probate experience that causes your family pain and delays in receiving your assets. At The Legacy Law Firm, we work with you to protect the best interests of you, your loved ones, and your assets with our estate planning services. We help you avoid common mistakes that can lead to probate issues, estate tax burdens, and Medicare eligibility jeopardization. Call us today at (954) 999-9683 or contact us online to discuss your unique situation, learn more, and get started.


Virtual Consultations Now Available

Enter your information below to get started

all fields are required*