PROBATE

Probate is a court process used when a person passes away (“decedent”) residing in Florida or owning property in Florida.  The court-supervised process includes determining whether or not there is a valid will, identifying and collecting assets held in the decedent’s name, paying the decedent’s debts, and distributing the remaining assets to the beneficiaries.

Whether the probate process is necessary depends on several factors including, the type of assets, the title of the assets and whether there are any beneficiary designations of such assets.

The start of the probate process is done when an interested party petition (asks) the court to begin the process and declare the will to be valid a process referred to as admitting the will to probate. An interested party can be the person named as personal representative in the will, an intestate heir, the beneficiary under the will, or even a creditor can be considered interested parties.

If the decedent had a will, the probate court is the only place the will can be declared valid or invalid.  If the will is valid, the court oversees the personal representative (some states call “executor”) to be sure terms of the will are carried out consistent with Florida law.

If there is no will or the will is declared invalid, the court implements the laws of intestacy, which dictate who would have priority to be appointed a personal representative and who would inherit the property.

Probate is not required for everyone in Florida.  Some examples where probate is required is when a decedent owned bank accounts or real estate in their name only or life insurance policies with no beneficiary designated.  Examples, where probate would not be required, is where the decedent dies owning held as joint tenants with rights of survivorship, tenants by the entireties property, accounts with beneficiary designations, or accounts held in trust name, among others.

Probate is concluded after all the assets are collected, creditors are paid and beneficiaries receive the assets.  There is a specific order of priority of how the assets must be paid and who can be paid first.  An accounting of what assets were collected, bills were paid, and distributions made is filed confidentially with the court and a copy given to all the same parties.  If no objections are filed and the court approves the accounting(s), probate can be closed.

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