Probate
Patricia R. Voss, P.A.

Probate is a legal process, by which a deceased person's property (assets) are transferred to others, when necessary. However, probate isn't always necessary.

For example, no probate proceeding is necessary when a deceased person (called a "decedent") owns property jointly with right of survivorship, with a living person or business entity (e.g., you and Joe own a duplex as joint tenants with right of survivorship and Joe dies - you own the property by operation of law; no probate is necessary in order for you to become the sole owner, it happens automatically on Joe's death).
For items such as life insurance, annuities and financial accounts (brokerage and bank accounts) that have valid beneficiary designations (or "pay on death,"  "transfer on death," or "in trust for" designations), there is no probate necessary in order for that item (or the money) to be distributed to a beneficiary.  Usually a certified copy of the death certificate and a document with a signature guarantee from a financial institution is all that is required by the financial institution, but it varies.

If a person's property (assets) are titled in the name of their validly executed revocable [living] trust, then there will be no probate required in order to distribute the assets of the trust. Many people in Florida have revocable living trusts worded to reduce estate tax but to also avoid probate.

So when is probate necessary?  If a single person dies with a Will ("testate") or without a Will ("intestate") but with no co-owners of property (real, personal, tangible or intangible), then a judge in the probate court in the county where the person died will have to authorize someone ("Personal Representative") to distribute the decedent's property according to the Will or according to Florida law, if the person died without a Will.

It is important to speak with an attorney (maybe two or three for sake of comparison) after a friend or relative dies to determine if probate is necessary or not.  If probate is necessary, there are two (2) kinds in Florida: Summary Administration and Formal Administration.  Summary Administration is usually less expensive and usually takes less time, but not always.  Formal Administration usually takes longer and as a result is usually more expensive than Summary.

In order to qualify for a Summary Administration, the decedent must have had a probate estate valued at less than $75,000 or have been deceased for more than two (2) years. A decedent's "homestead" property value is not included for the purposes of calculating the $75,000, e.g., it would be possible for a decedent to have owned a home valued at $500,000 and financial accounts totaling $74,999 and his or her estate would still be able to qualify for a Summary Administration.

Everyone wants to know "how long will it take?"  The speed with which probate can be started and completed will depend on a variety of factors, such as: 1) if the Will is valid and an original (if there is a question as to it's validity or if the original can not be located it may take months to get proper documentation in order to have it "admitted to probate;" 2) the completeness, accuracy, and accessibility of the decedent's records; and 3) the degree of cooperation between the attorney, client and the heirs or beneficiaries.

And the other important question?  How much will it cost? The filing fees (paid to the court) range from $236 - 401, depending on the type of probate required and the county where the filing is done.  An attorney may take a probate on a percentage basis, depending on the value of the probate estate; other attorneys charge by the hour and generally require ten hours "up front" (retainer) plus a cost deposit to cover the filing fees, postage, photocopies, etc.

The Broward County probate court offers a Personal Representative's Handbook that may be helpful in further understanding the probate process.
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© Patricia R. Voss 2000 - 2017.
Patricia R. Voss, P.A. 1250 S. Pine Island Road #275 Plantation, Florida 33324-4460 Tel: (954) 524-5599; Fax: (954) 524-5447