Probate Administration
PROBATE: COURT-SUPERVISED ESTATE ADMINISTRATION
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After the death of a loved one, many questions arise: “How do I put the house in my name to sell it?” “How do I access the checking account if I’m not the beneficiary?” “Do I continue to pay the mortgage?” Whatever the question is, our attorneys are here to help.
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WHAT IS PROBATE?
THE BASICS.
Probate is the legal process by which assets of a deceased individual (a “decedent”) are marshaled and distributed after paying valid debts and expenses. There are several forms of probate administration in Florida, including: Formal Administration, Summary Administration, Ancillary Administration, and Disposition of Property without Administration. Each form of administration starts with a “petition” (i.e., an initial court filing), and ends when the court enters an order determining the probate estate has been fully administered. Under Florida law, probate administrations generally require an attorney. See Fla. Prob. R. 5.030(a).
WHEN IS PROBATE NECESSARY?
Generally, a Probate Administration is necessary when a deceased person (“decedent”) dies owning an individual, undivided interest in property within the State of Florida. Most often, this includes property in the form of real estate, financial accounts, business interests, and personal property. However, a probate is also necessary if a decedent has an interest in damages resulting from someone’s tortious actions, such claims arising from wrongful death, personal injury, or breaches of contract. These are all examples of “Assets Subject to Probate” or “Probate Assets”.
In sum, if a decedent dies owning Assets Subject to Probate, a probate administration is always necessary to transfer the assets to the beneficiaries of the estate.
Examples of Assets which are not subject to Probate include:
- Financial Accounts designating “payable-on-death” or “transfer-on-death” beneficiaries.
- Assets held as joint tenants with rights of survivorship, where the decedent was survived by at least one joint tenant.
- Assets held in a decedent’s Revocable “Living” Trust.
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