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If I already have a Will, does that mean that I have avoided “probate”?  What is “probate” anyway?

Probate is a court process to transfer the property of a person who has passed away (or the “decedent”) to the beneficiaries of the decedent’s estate, either based on a Will or through the Florida intestacy laws (which apply if there is no Will or the Will is invalid).  Even if you have a Last Will and Testament, your property may have to go through the probate process.  All assets titled in your individual name without a beneficiary designation are subject to the probate process.   Legally speaking, no one has access or authority over an asset that is titled in the name of someone who passes away, which is why probate necessary in such case.  However, assets that have a beneficiary designation (such as life insurance, retirement accounts or an annuity) are not subject to probate.  In addition, some forms of joint ownership allow to avoid probate.  For example, the assets titled in joint names “with right of survivorship” (however, not the assets titled as “tenants in common”) will avoid probate and pass to the survivor without the court’s involvement.  These assets have already been designated to pass to the person listed either as a beneficiary or joint owner so probate is not required.  However, it is important to determine that the assets are properly titled in joint names “with right or survivorship,” or have an appropriate beneficiary designation.

All of the decedent’s assets that have to be transferred through the probate process are collectively referred to as the “probate estate.”  The value of the assets of the probate estate determine which of the two main types of probate in the State of Florida are needed, the two types are referred to as a full administration or a summary administration. 

Full Administration

A full administration is a lengthy complicated process that takes about 12 -15 months to complete and may cost several thousand dollars. This type of administration requires that a Personal Representative be appointed by the court.  A Personal Representative is the person who will advocate in front of the court on behalf of the decedent’s estate and be in charge of collecting and distributing the estate assets.  Usually, the decedent’s Will (if any) will contain a provision that names one or more persons to serve as Personal Representatives.  However, if that provision fails, because the individual is unable to serve or is not authorized to serve pursuant to Florida law, then the court will appoint a person who would be suitable for this position (usually a family member).  Typically, when someone passes away without a Will, a majority in interest of the intestate beneficiaries of the probate estate must agree on the person who will serve as Personal Representative.

In Florida, the Personal Representative must be represented by an attorney. Once the Personal Representative is appointed, he or she is responsible for filing the requisite pleadings with the court. There are no less than twenty-five separate pleadings that are required to be filed in any full administration, however, the contents of each pleading vary greatly from case to case. In addition, the Personal Representative is responsible for determining the validity of the claims filed against the probate estate by creditors and he or she also has specific duties regarding keeping the beneficiaries of the probate estate informed.  Besides an attorney, the personal representative will also need to hire [at the expense of the estate] an accountant to file the appropriate tax returns, both for the decedent individually and for the probate estate, with the Internal Revenue Service.  In the event the Personal Representative fails to file a return or perform his or her duties, he or she may be held liable either by the court or, in the case of taxes, by the IRS.

Once all issues associated with debts of the estate, tax liability and, possibly, disputes between beneficiaries of the estate, are resolved, the Personal Representative may begin to make distributions from the estate to the appropriate beneficiaries. Depending on the types of the assets that had to be probated, this can also take several weeks or months. For example, one probate asset may be real property that must be sold so the proceeds can be divided between beneficiaries. Only after the distributions from the probate estate are complete will the Personal Representative be discharged and the estate proceeding closed with the Probate Court.

Summary Administration

A summary administration is a much simpler process. In a summary administration, there is no appointment of a Personal Representative and the entire process usually takes around 4-5 months to complete. It is also much less expensive to administer. In order to qualify for summary administration, the total value of probate estate’s “non-exempt” assets has to be less than $75,000. The probate estate may include exempt property (discussed below) of any value without jeopardizing the eligibility for summary probate. Also keep in mind, that this threshold only applies to probate assets, so any assets passing via beneficiary designation or joint ownership are non-probate assets and are also not included in the $75,000 limit. 

Exempt Probate Assets

There are several types of assets that are considered “exempt” from the probate estate when determining the value of the probate estate for administration requirements.  These assets include homestead real property and exempt personal property consisting of the decedent’s car, furniture and furnishings in his or her usual place of abode.  There are specific requirements that must be met in order for the real property and tangible personal property to qualify as exempt.  Please consult an attorney when trying to make this determination.