If someone dies owning assets solely in his or her name in Florida, that person’s estate might go through probate. During probate, a Florida court will identify whether the decedent’s will is valid and how to distribute his or her assets under state law.
In this article, you will have an overview of the do’s and don’ts in Florida probate.
Probate Do’s and Don’ts in Florida – An Overview
Properly Executing the Will
The primary element of probate is the deceased person’s will. The last will is the legal document that dictates how someone’s assets must be distributed upon death and who must be designated to conduct the distribution process.
Florida Statutes provide specific legal requirements to ensure the validity and enforceability of wills within state jurisdiction. If a will is not properly drafted or executed, it may result in an unpleasant situation after the testator’s death.
Depending on the circumstances of the testator (the person creating the will), the individual’s estate plan may require adaptations, amendments, or even a new will. The best solution is to work with an expert attorney for an individual assessment.
Providing Specific Instructions
Florida Statutes §732.901 (1) specifies that “the custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead.
Many Florida residents often leave a will, but simply preparing a last will is not sufficient to ensure an efficient transition to probate.
The first step is to leave funeral instructions, communicate the testator’s preferences to the family, and leave sufficient funds available to cover the related expenses. While the will must be stored in a safe place, the testator must ensure reliable individuals have access to the document.
If the will or other important documents are stored in a safe deposit box, the testator must ensure that someone has access to it.
Handling Probate Assets and Non-Probate Assets with Different Strategies
For probate procedures, a deceased person’s estate consists of all the assets he or she owned at the time of death. The decedent’s estate may not be subject to probate as a whole, considering there are probate assets and non-probate assets.
If an asset is owned by the decedent in his or her sole name, it may go through probate. Examples of probate assets include:
- Real property titled solely in the decedent’s name
- Real property titled by the decedent under tenancy in common
- Bank accounts titled solely in the decedent’s name
- Vehicles titled in the decedent’s name
- Membership interests in business (e.g., profit shares)
- Life insurance policies or brokerage accounts designating the decedent or its estate as the beneficiary
- Personal jewelry, collectibles, and furniture
Florida Statutes §732.402 provides a list of assets that are considered exempt from probate, including vehicles, qualified tuition programs, and death benefits that meet the statutory requirements. Other assets that are subject to Florida probate include:
- Real property held under tenancy by the entirety (exclusive to married couples)
- Real property held under joint tenancy
- Property titled in the name of a trust
- Retirement accounts
- Bank/brokerage accounts under joint tenancy
- Bank/brokerage accounts with payable-on-death (POD) and transfer-on-death (TOD) beneficiaries
- Life insurance, annuities, IRAs, and other policies not listing the decedent as the beneficiary
Consult with an expert attorney to know how to handle probate assets and non-probate within an optimized estate planning strategy.