Understanding the Process of Probate in Florida: What You Need to Know
According to the Florida Bar Association, probate is a court-supervised process of finding and collecting the assets of a deceased person (called the decedent), paying the decedent’s debts, and distributing the remainder of the assets to the decedent’s beneficiaries
What is Probate?
Some examples of assets include: a bank account in the sole name of the decedent; a life insurance policy or retirement account payable to the decedent’s estate rather than a specific individual; or real estate in the sole name of the decedent. Joint accounts and jointly-owned property may not be considered probate assets.
Wills and Estate Planning
If an individual dies without a will (called“intestate”), the State of Florida distributes his or her assets to “heirs”—people related to the deceased and described in the Florida statute governing distribution of probate assets of those who die intestate (without a will).
First, assets are used to pay the cost of the probate proceedings, then to pay off any outstanding debts the deceased had. Afterward, remaining assets are distributed to heirs.
Florida has a list of rules regarding who inherits what under which circumstances. In general, assets are first distributed to the decedent’s surviving spouse, if there is one. If not, assets usually go to the decedent’s descendants, and are divided among them if the decedent had more than one surviving child (under certain circumstances, assets may be divided between the surviving spouse and the decedent’s descendant(s)). If no surviving spouse or child can be found, assets will be passed to the decedent’s parents, siblings, or more distant relatives, in that order. There are exceptions for things like homestead property, but the asset reallocation process typically proceeds in that order.
How to Make Your Sure Your Wishes Are Carried Out
Obviously, many people prefer to make their own directive for how their assets will be distributed—commonly known as writing a will. A will is a document, signed by the decedent and witnesses, that needs to meet the requirements of Florida law. In his or her will, the decedent can name beneficiaries of various probate assets. The decedent can also designate a personal representative (also called an executor) of his or her choosing to administer the probate estate.
Although will-making kits are readily available in many stores or online, hiring a Florida probate lawyer can help you make sure everything is prepared the way you want, and make sure that your assets will be distributed the way you wish. While writing your own will may work in simple situations—say, if you leave everything to one person—most wills are more complicated and there are certain requirements under Florida law that need to be met when drafting a will. A Florida attorney can help make sure you haven’t forgotten anything, and sometimes even help you avoid potential problems for your heirs.
How Should I Prepare For a Meeting With My Florida Probate Attorney?
You should prepare a list of your assets and what you want in your will—a list of names and what you wish to leave each of those people. If you have questions or concerns, make a list of those as well.
When you meet with your Florida probate lawyer, he or she will go over your notes with you, asking any pertinent questions. Your attorney may remind you of assets you overlooked, forgot about, or didn’t even consider as assets. He or she may ask what you want to do in certain situations—for example, if you leave a large asset to your sister and she dies before you do, who do you want it to go to instead? Often, an attorney’s thoroughness can help put your mind at ease that your wishes will be carried out properly. In some situations, having a well-planned will can also save your heirs from a lengthy probate process.
A probate attorney may also ask about concerns that aren’t part of the probate process, but are related and often considered when one makes a will. For example, if you have young children, who would you want to care for them if you and their other parent were both deceased? You might also discuss your needs for a living will or health care directive to ensure your end-of- life wishes for medical care are understood if you are unable to communicate them.
ABOUT THE AUTHOR: Nico Apfelbaum
Nico Apfelbaum, Esq. is the managing attorney of Apfelbaum Law, a Florida law firm serving Port St. Lucie, Stuart, the Treasure Coast and assisting clients with matters throughout Florida. Apfelbaum Law provides a wide variety of legal services, including, family law, divorces, business and contract transactions and litigation, immigration, wills and estate planning, probate law, and real estate law. The attorneys of Apfelbaum Law will answer your questions, explain your options, and provide you with the tools and resources you need to make an informed decision.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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