What is Probate?
Probate is a court-supervised process that allows you to administer and distribute a deceased person’s property to their rightful heirs. Probate is essential when the deceased dies without a will and the asset is not held jointly (or does not have a payable on death beneficiary named). A deceased person who dies without a will (or without a valid will) is said to have died intestate. Florida probate law requires you to get this right via the courts to ensure the deceased’s property does not fall into the wrong hands. If you have lost a loved one who died intestate, you may need a probate to administer the property.
You may also need to go through the probate process even if the deceased left a will in their lifetime. The named personal representative (i.e., executor) of the will must submit it to the probate court as the final declaration and testament of the decedent. This process is necessary to prove the validity of a will. Once validated, the court grants the executor the authority to act and deal with the deceased’s estate in accordance with the will.
Types of Probate in Florida
There are two types of probate administration in Florida: summary administration and formal administration.
- Summary administration: Summary administration is the cheaper and faster route for going through the probate process in Florida. Summary administration is ideal if the decedent passed away more than two years ago, or the value of the decedent’s estate is below $75,000. If the estate meets either one of these two conditions, you may file a Petition for Summary Administration with the court. Homestead property (i.e., the deceased’s primary residence) is considered exempt property and is not included in the $75,000 threshold so a deceased may have left a primary residence worth millions and the deceased’s heirs can still take advantage of summary administration.
- Formal administration: A formal probate administration is required when the value of the decedent’s estate exceeds $75,000 or when the deceased died less than two years ago. In this type of administration, the court appoints a personal representative to settle the decedent’s affairs. This usually occurs when the estate has significant assets, requires the settling of creditor claims, has multiple beneficiaries, has to file for an estate tax return, or is involved in litigation.
Why an Estate May Need to Go Through a Probate
Now that you understand the types of probate, let’s go on to why you may need to file for probate in Florida.
- The deceased died intestate: You may need to petition for probate when the owner of the estate dies without a will and the deceased left assets in their sole name (without a payable on death beneficiary named). In this case, you have to petition the court to open the probate case, allowing you to administer the estate on the deceased’s behalf. Without probate, you cannot sell or lease properties belonging to the decedent.
- Where the deceased leaves a will: You may also have to petition for probate when the deceased leaves a will and has left assets in their sole name without a payable on death beneficiary. Usually, the maker of the will, called a testator, names a person as the personal representative (i.e. executor) of their estate. The executor is who the testator chooses to administer his or her estate and deliver the properties to the named heirs. Where the deceased leaves a will, the executor has to submit the will to a probate judge who then reviews the will and admits it to probate.
Who Can Petition for Probate in Florida?
Petitions for probate must be specifically drafted based on whether the deceased left a will. The following persons may apply for probate in Florida:
- Executor/Personal Representative: A person named executor in a will may apply to the court for probate. They will petition the court to admit the will to probate. After the probate judge admits the will to probate, the executor may proceed to administer the estate.
- Beneficiaries: A beneficiary under a will may also apply to the court for probate where there is no executor in the decedent’s will. This beneficiary is then appointed as a personal representative of the estate by the court.
- Creditors: When a person dies without settling their debts, creditors may apply to the court for probate to administer the deceased’s estate. The administration involves setting their claims and delivering the rest of the estate’s assets to the deceased’s heirs.
If the deceased dies intestate, Florida’s intestacy rules apply, ensuring the deceased’s heirs, such as the spouse or children, inherit the estate. If an individual dies without a will, Section 733.301, Florida Statutes, provides for the order of preference for the person representative. For an intestate estate, the order of preference for the appointment of the personal representative is:
- The surviving spouse
- The person selected by a majority in interest of the heirs
- The heir nearest in degree, or the best-qualified heir as selected by the court
- Any capable person appointed by the court.
What Assets Have to Go Through the Probate Process?
Assets that are solely in the deceased’s name and have no payable on death beneficiary must go through the probate process. The deceased must have acquired or held the property as their personal asset. Property jointly owned by the deceased and another person may not have to be distributed via probate. Examples of assets that do not have to go through probate include:
- Living trusts with a named beneficiary
- Life insurance policies
- Retirement accounts with payable on death beneficiaries
- House or bank accounts jointly held by a married couple
- Property held as joint tenants with rights of survivorship.
How Farshchian Law Can Help with Your Probate Matter
Florida’s probate process can be complex and often require the assistance of an experienced probate attorney. Farshchian Law is here to help you navigate through the probate court process so that your loved one’s assets can be distributed to the heirs of the estate as quickly and efficiently as possible. For a free consultation, please contact us at (305) 901-5628 or (239) 935-8599, or email us at Probate@JFRealEstateLaw.com.