Do I Have to Open Probate?

Q- “My Mother/Father/loved one had a Last Will and Testament, why do I have to open probate?”

A- Because the Last Will is merely an instruction manual for the courts as to how the person who

     made the Last Will would like to have their assets distributed after passing away.

Let’s start with the basics-

What is probate?

Probate is the analysis and transfer administration of estate assets previously owned by a deceased person. Probate is a court-supervised process in which either (1) the authenticity of the Last Will & Testament is proven to be the true “last testimony” of the person who died, or (2) to oversee the distribution of assets if no Last Will & Testament was left. The probate court provides the final ruling on the division and distribution of assets to the beneficiaries.

How Probate Works

After an asset-holder dies, the court appoints either a Personal Representative named in the Last Will or based on state statute (if there is no Last Will) to administer the process of probate. This involves collecting the assets of a deceased person to pay any liabilities remaining on the person's estate, and to distribute the assets of the estate to beneficiaries.    

In general, the deceased person’s assets pay the probate proceeding’s cost, the deceased person’s funeral expenses, and then the deceased person’s outstanding debts. The remainder of the assets is distributed to the deceased person’s beneficiaries based on either their wishes as laid out in their Last Will or based on the distribution of the state statute.[1]

Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. Probate for real estate may need to be extended to any states in which the real estate is located.

If the deceased had a Last Will, they died “testate” and their assets will be distributed per the terms in their Last Will.

If the deceased did not have a Last Will, they died “intestate” and their assets will be distributed according to state law.

            Intestate

           In intestate probates, the Personal Representative is responsible for locating any legal heirs of the   

           deceased, including surviving spouses, children, and parents. The probate court will assess what assets need

           to be distributed among the legal heirs and how to distribute them.[2]

What are Probate Assets?

Probate administration applies only to probate assets. Probate assets are those assets owned in the deceased person’s sole name at death or owned by the deceased person and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be probate assets might include:

  • A bank account or investment account in the sole name of a deceased person is a probate asset. A bank account or investment account owned by the deceased person and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a probate asset. 

  • A life insurance policy, annuity contract, or individual retirement account payable to the deceased person’s estate is a probate asset. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.

  • Real estate titled in the sole name of the deceased person, or the deceased person’s name and another person as tenants in common, is a probate asset as to the deceased person’s interest. Real estate titled in the name of the deceased person and one or more other persons as joint tenants with rights of survivorship is not a probate asset. Also, property owned by spouses 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.  

The reason these assets can sometimes pass without opening probate is that prior to death, the deceased person named beneficiaries on these accounts/assets, and they pass under contractual terms.

By taking a proactive approach, you could save your loved one’s time and make sure that any assets you leave are provided for them and not legal fees. Contact us today to schedule your complimentary estate planning consultation and learn how you can help your loved ones avoid probate.      

Key Takeaways

  • Probate is the legal process for reviewing the assets of a deceased person and determining who inherits what.

  • A probate proceeding is not always required upon death but is usually essential when a deceased person died without a Last Will.

  • By planning ahead, individuals can avoid high probate costs and complexities by having an easily authenticated Last Will or using investment vehicles that do not require probate.

 

[1] You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. You can find the rules governing Florida probate proceedings in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

[2] Part I, Chapter 732 of Florida Statutes