Probate is a court-supervised process of administering the estate of a deceased person through the resolution of all claims and the distribution of the deceased person's property under a valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called "Disposition of Personal Property without Administration." This type of administration only applies in limited circumstances.
WHAT ARE PROBATE ASSETS?
Probate administration only applies to probate assets. Probate assets are assets owned by the decedent in his or her 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.
Example Probate Assets:
- Decedent's personal property inherited upon the deaths of his/her parents, as his/her separate property.
- Decedent's bank and brokerage accounts, as to his/her one-half interest in community property.
- Decedent's interest in a vehicle, a boat, or an airplane, as a tenant-in-common (ie, not joint tenancy) with other joint owners.
- A life insurance policy owned by Decedent on his/her life and whose named beneficiary is his/her estate.
- Decedent's IRA for his/her benefit and whose named beneficiary upon his/her death is his/her estate.
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 after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
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