When Probate is not required
Not every estate needs to go through the probate process. Probate is only required if there is no other framework by which the asset may be transferred to the estate’s heirs or beneficiaries.
When the decedent has taken further steps to distribute assets, a probate may not be required.
Determining if a probate is required or not depends on the nature of the assets of the decedent.
What assets are Probate assets in Florida?
Which assets are probate assets, pertaining to probate administration, is an initial issue in every Florida probate administration. Probate assets are assets that the deceased owns at death – but only those assets that don’t automatically transfer to someone else after death.
The simplest way to study which assets are subject to probate administration and which are not is, to begin with, are assets that do not probate.
Following are assets that are not considered to be probate assets:
1. Joint Ownerships with survivors
The title of an asset, typically denoted ownership, in the name of two or more individuals. Real estate and bank accounts may be jointly titled with survival rights. When one owner passes the surviving owner becomes the owner of the asset automatically.
An asset titled in conjunction with a right of survival is not a probate asset and such an estate consisting of this kind of asset will not go through probate in Florida.
The trustee of the trust shall distribute assets within a revocable trust to the named beneficiaries as set out in the trust document. The assets in the revocable trust won’t be assets of probate.
Banks and financial institutions usually provide the ability to include the designation ‘pay on death’ (POD) or ‘transfer on death’ (TOD).
Upon the former owner’s death, the bank or brokerage will simply hand over the account to the account’s listed death owner pay.
4. Designated Beneficiaries
Some types of accounts generally give the asset’s owner the ability to designate a beneficiary upon the owner’s death. These include, but not limited to:
- Life insurance policies
- Retirement accounts
An asset with a designation of the beneficiary will not be a probate asset unless the probate estate is mentioned as the beneficiary.
Estates going through Probate in Florida
Assets owned exclusively in the name of the decedent will most probably have to pass probate. Upon death, single-owned assets become “locked” as nobody has the legal power to unlock them. Only a probate court order will “unlock” the assets which are solely owned, in most cases.
A Personal Representative (executor) will be appointed by the probate court and the PR will have power under state law to unlock the account and use the funds to conduct State business. Probate assets cannot be allocated to the heirs until the estate has been administered and the Judge has authorized the PR to distribute them.
Hiring a Probate Attorney
Even in cases where the decedent didn’t leave any probate assets behind, probate can be suitable. Since probate law permits for the final settlement of all the debts of the deceased, the rights of creditors to proclaim a claim against an estate terminates when the probate estate is closed.
The termination of creditors’ claims will be beneficial when the decedent has creditor problems and/or has been the subject of a prospective lawsuit.
Dealing with the estate of a loved one can be a challenging time for the family. An experienced probate attorney may be of assistance. Contact the Probate attorneys at the Private Corporate Counsel Firm if you or your loved one require assistance.