Probate Law
There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal 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.
WHAT ARE PROBATE ASSETS?
Probate administration applies only to probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be probate assets may include:
- A bank account or investment account in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a probate asset.
- A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.
- Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is a probate asset (unless it is homestead property). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset. Also, property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.
(This list is not exclusive but is intended to be illustrative.)
WHY IS PROBATE NECESSARY?
Probate may be necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law. Some assets do not require a probate proceeding to transfer ownership. You should contact a probate attorney to provide specific guidance.
Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
