PROBATE: What it is

Often the probate process is characterized by misinformed persons as something bad to be avoided. Probate is the process by which a decedent's bills are paid and property held in the decedent's name alone are transferred by court authorization, in accordance with the decedent's will, if there was one, or by general law if no will is found. If someone dies without a will State law will determine how his/her assets are passed to their legal heirs. A Personal Representative is nominated either by the decedent's will or appointed by the court to administer the estate. This process can take from 2 weeks to years depending upon the type of administration and whether there is litigation.

The most common types of probate in Florida are formal administration and summary administration. Summary administration applies to probate assets less than $75,000 in total value. The process takes approximately 2 weeks. Formal administration take around 5 months, largely because of a 90 day period for creditors claims to be filed against the estate. Attorney fees for formal administration are set forth in the Florida Statutes.

There are many ways of avoiding probate of your assets. The major ones are a living trust, putting property in joint ownership with a survivorship interest, such as life estates on real property, or joint tenancy with right of survivorship for real property, bank accounts, stocks and bonds. Beware of pitfalls. By adding names to property during your lifetime, it may be difficult to have the property returned to, or conveyed by you, or to your intended beneficiaries. Even though you may plan to avoid probate it is still prudent to have a current Florida will, to cover assets which inadvertently or unavoidably were not transferred into the name of the trustee, remainderman, or joint tenant. Even if a single titled asset is in the decedent's name alone at death, probate would still be necessary in order for title of that asset to be transferred.

Out-of-state wills are are generally valid in Florida, although, it is time consuming and expensive to go out-of-state to find the witnesses to those wills.

Please call 561-547-0559 if you'd like more information regarding the probate process or to discuss methods for avoiding probate of your estate.