One of the most common questions I receive from folks is simply “What is probate court?” Probate is the court-supervised process of distributing the assets of an individual, referred to as his or her “estate” after they pass away. Probate in Florida is handled by the Circuit Court of Appeals, probate division. This means that there will be a judge specialized in probate procedures to assist with the process of administering the estate assigned to your case. In Florida, probate procedure is governed by the Florida Rules of Probate and the substantive law or statutes contained in Florida Statutes Chapters 731 through 735.
If you are considering opening a Florida Probate, the first concept to understand is that in Florida, some assets are “probate assets” and some assets are non-probate. Generally, probate assets mean items held in the name of the deceased alone. Conversely, non-probate assets can be joint accounts or financial instruments that have a “payable on death” or “transferable on death” provision. Any asset with a specific beneficiary designation may pass outside of probate. Another common example is a husband and wife in Florida who hold a title jointly; in many circumstances, the property can be passed to the surviving spouse without the need to put that asset into a Florida Probate. It is possible in many circumstances that a Probate Court proceeding is not necessary to obtain access to the assets of the decedent. Alternatively, in many circumstances, a probate proceeding is the only means by which the heirs or beneficiaries of an estate can obtain access to a decedent’s assets.
In essence, a Florida Probate Court proceeding is simply the process of identifying probate assets and then making distribution to the rightful owners after the expenses of administration, debts of the deceased and outstanding tax liability has been satisfied. The Florida Rules of Probate and the Florida Probate Code set forth the rules for the procedure and the rights of the beneficiaries and creditors of an estate. If done properly, a Probate Administration can often occur from start to finish without the need for any Court appearances or hearings. In Florida, generally Probate court proceedings take one of two paths, either a Summary Administration proceeding or a Formal Estate proceeding. Summary Administration proceedings are only available for smaller estates or when the deceased has been passed for over two years. If a small estate Summary Administration is not available because of the size of the probate assets or otherwise, Florida Law requires that the person in charge of the estate, known as a “Personal Representative” (called Executor in other states) obtain legal representation to assist him or her complete the process. Additionally, because of the complexity of dealing with the IRS and the tax code for any tax issues of the deceased, it is strongly recommended that the Personal Representative retain an accountant for at least a review/consultation of the decedents potential tax liability.
If you find yourself dealing with a Probate in Florida, we have outlined many of the issues you will need to consider on our website. For those dealing with this process for the first time, we understand how stressful and overwhelming this situation can be. Call us for a no obligation free consultation to learn more.