Probate is the court process for passing ownership of a deceased person’s assets to the beneficiaries. It is also necessary to wind up the decedent’s financial affairs and make sure all the decedent’s creditors are paid.

Probate Assets

Probate assets are property (real and personal) that the decedent owned in his or her sole name on the date of death. They do not include bank or investment accounts that are held jointly with right of survivorship with another individual or accounts that are payable or transferable on death to another. They also do not include a life insurance policy or retirement account that is payable to a specific beneficiary.

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances when the amount of the assets is very small.

Florida probate law: formal administration and summary administration

In a formal probate administration, the required documents are filed with the Clerk of the circuit court in the county where the decedent lived at the time of his or her death. The Circuit Court judge assigned to the case signs all Probate Orders and presides over hearings in the matter. If there is a Will, the judge approves the Will and appoints the Personal Representative named in the Will. If there is no Will (this is called “intestacy”), the judge appoints the surviving spouse or another family member to be the Personal Representative.

The Personal Representative is in charge of the administration of the decedent’s probate estate and has a legal duty to administer the probate estate pursuant to Florida law. In most cases the Personal Representative will be required to be represented by an Attorney who will provide legal advice throughout the process. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be unfamiliar to non-attorneys. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida is not more than $75,000, and if the decedent’s debts are paid. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

In the last 2 blogs, I talked about transfer on death types of deeds for real estate, known in Florida as “Enhanced Life Estate Deeds” or “Ladybird Deeds”. I also explained the advantages of a Living Trust.

This article will discuss methods you can use that do not involve specific legal documents. Disclosure: The discussion below does not apply to all your assets. As always, I recommend speaking with a Florida Bar Certified Elder Law Attorney who can advise you regarding all the long-term ramifications and consequences of each type of planning in your particular case.

Joint ownership

If you own property with another individual this ownership could include the “right of survivorship.” In this case, the surviving owner automatically owns the property when the other owner dies and no probate will be necessary to transfer the property. Usually, a death certificate is required to show that the property is held solely by the surviving owner. You can own real estate, bank accounts, and certain other types of property in this manner. Caution: just having both names on the instrument of ownership may not be sufficient; other words, such as “rights of survivorship” are required or you might end up owning only half the property when the other owner dies.

Payable-on-death or Transfer-on-death designations for bank and brokerage accounts

In Florida, you can add a “payable–on-death” (POD) designation to bank accounts. For brokerage and securities accounts this is called “transfer-on-death” (TOD). You still control the assets in the account and the POD beneficiary has no rights to the assets while you are alive. At your death the account passes directly to the beneficiary without probate proceedings.

Transfer-on-death registration for vehicles

Florida does not allow transfer-on-death registration of vehicles. You can create a right of survivorship by owning the vehicle with someone else and using the work “or” between your names. If you have a living trust, you can assign the vehicle to your trust. These methods would avoid probate.

Even if you do no planning to avoid probate, your estate may qualify for Florida’s simplified “summary probate” procedure. I will discuss this probate shortcut in following articles.

Debra G. Simms

 To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Contact Us

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Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
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629 N. Dixie HWY
New Smyrna Beach, FL 32168
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