WHAT IS PROBATE AND WHEN DO I NEED IT?

Probate is;

A court-supervised process for identifying and gathering the assets of a deceased person (decedent).

Probate can involve;

  • 1. paying the decedent’s debts, and
  • 2. distributing the decedent’s assets to his or her beneficiaries

The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

Two and a Half Types of Probate

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called "Disposition of Personal Property Without Administration." This type of administration only applies in limited circumstances. Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

What Are Probate Assets?

Probate assets include, but are not limited to, the following:

  • 1. A bank account or investment account in the sole name of a decedent.
  • 2. A life insurance policy, annuity contract, or individual retirement account payable to the decedent's estate.
  • 3. Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property).
Why Is Probate Necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries, if the decedent did not have a will. Probate is also necessary to complete the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

How Do I Start A Probate?

Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived at the time of his or her death. A filing fee is required and should be paid to the clerk. After you file for probate, the clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

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