Probate Defined

WHAT IS PROBATE?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s 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).

There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.

There is also a non-court supervised administration proceeding called ‘Disposition of Personal Property Without Administration.’ This type of administration applies only in limited circumstances.

WHAT ARE PROBATE ASSETS?

Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s 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.

For example:

A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
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), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative.

WHY IS PROBATE NECESSARY?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

WHAT IS A WILL?

A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.

WHAT HAPPENS IF THERE IS NO WILL?

Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing the distribution of the probate assets of a decedent who died intestate.

If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):

If the decedent was survived by a spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents and more remote descendants.
If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.
If the decedent was not married at the time of death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by that child’s own descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.
If the decedent was not married at the time of death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

WHO IS INVOLVED IN THE PROBATE PROCESS?

Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:

Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.
Circuit court judge.
The personal representative (or executor).
The attorney providing legal advice to the personal representative throughout the probate process.
Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and sometimes as to federal gift, estate or generation-skipping transfer tax matters.

WHERE ARE PROBATE PAPERS FILED?

The decedent’s will, if any, and certain other documents required to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county in which the decedent lived at the time of death. The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. (S. 732.901, Florida Statutes.) There is no fee to deposit the will with the clerk of court. However, a filing fee must be paid to the clerk upon opening a probate matter. 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.

In the interest of protecting the privacy of the decedent’s beneficiaries, any documents that contain financial information pertaining to the decedent’s probate estate are not available for public inspection.

WHAT IF THERE IS A REVOCABLE TRUST?

If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee may be required to pay expenses of administration of the decedent’s probate estate, enforceable claims of the decedent’s creditors and any federal estate taxes payable from the trust assets.

The trustee of such a trust is always required to file a ‘Notice of Trust’ with the clerk of the court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust, and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks that must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of the gross estate for purposes of determining federal estate tax liability.