What is probate?
Probate is the legal process which distributes a deceased person’s estate assets to their heirs and designated beneficiaries, and which pays any debts owed to the creditors of the decedent. Usually, estate property is distributed according to the wishes of the decedent as stated in their Last Will and Testament. If the decedent had no Will, then Florida statutes determine how estate property is distributed to the heirs.
Probate involves several basic steps:
- If the decedent had a Will, theWill is presented to the Court, to be determined valid.
- The Court then appoints someone to administer the estate. If there is a Will, the administrator is usually named in the Will and is called a Personal Representative (in other states, the administrator of the estate is called the Executor). If there is no Will, a person who has an interest in the Estate (including a creditor) can petition the court to be appointed as Personal Representative of the estate.
- The deceased person’s property is identified and inventoried. Most assets cannot be sold or distributed until the probate process is complete.
- All estate assets and properties are appraised.
- All valid debts, including taxes owed by the deceased, are paid from the assets of the estate.
- The remaining estate assets are distributed according to the decedent’s wishes if there is a Will, or, according to Florida statutes if there is not a Will.
What If There Is No Last Will and Testament?
Even if there is no Will (and no living trust), then all assets owned solely by the decedent are subject to probate.
How Long Does the Probate Process Take?
On average, the probate process is completed six to nine months after a probate case is opened with the court. Most Florida courts require the administration of a probate estate to be completed within 12 months of the opening of the estate. This can vary depending on the court; and, estate administration may take years, if there are disputes over the validity of the Will, or, the distribution of assets.
What Property Is Not Included in Probate?
Some assets not subject to probate estate administration (called non-probate assets) include life insurance policies that designate a beneficiary, jointly owned financial accounts, and, financial accounts with a named “pay on death” beneficiary. Real estate held in joint names with rights of survivorship can bypass the probate process as well. You can make almost all of your assets non-probate if you place them into a living trust.
One of the goals of estate planning is often to avoid the time and expense of the probate process to distribute assets to your heirs in a timely and efficient manner. Contact our office for our assistance to determine the best plan for the distribution of your estate after your passing.
