Probate

Probate & Administration of Estates of Decedents

The following information applies only to Florida legal matters. The only people whose estates would be subject to Florida's jurisdiction would be those who die leaving assets in Florida and those who die as Florida residents. 

The term "probate" refers to the steps necessary to establish the validity of a will and to admit a will to be administered in a court proceeding. "Probate" loosely refers to the administration of any estate subject to the court's jurisdiction. The legal representative of a decedent's estate is the personal representative and is appointed by the court to administer the estate. In the past, the personal representative has been known as the executor. 

The following assets would be subject to estate administration in Florida:

Intangible Assets

Accounts owned by the decedent alone in a financial institution for which the decedent did not designate a surviving beneficiary to whom the balance of the account should be paid on the account holder's death.

Promissory notes, stock certificates, and checks payable to the decedent alone or to the decedent and one or more other people, without designating a right of survivorship. If owned by a married couple and the negotiable instrument states "husband and wife" or similar words after the names of the owners, the instrument may not be subject to estate administration. 

Business Interests

Tangible personal property, such as vehicles, jewelry, artwork, collections, and musical instruments.

Real estate owned by the decedent alone or as a tenant-in-common with one or more other people. A lawyer should verify the type of ownership.

Life insurance policies and other instruments and financial accounts payable to a beneficiary who does not survive the decedent or payable to the decedent's estate.

If the decedent left a valid will which is admitted to probate, the estate is said to be "testate." Otherwise, the estate is considered to be "intestate" and the heirs of the estate are determined by law.

There are laws that afford rights to certain family members to inherit a greater share of a decedent's estate than what the will provides. This may apply to surviving spouses and decedent's children, in certain circumstances.

Sometimes nearly all of a decedent's assets may be in a revocable or living trust. Florida law must be followed to free the assets from any potential claims of estate creditors. In addition, a surviving spouse can claim a share of the trust under the laws regulating elective shares.

In recent years, many myths have been spread by non-lawyers causing some people to believe that they should do whatever is necessary to avoid subjecting their estates to the probate process. You should consult with a lawyer to plan your estate properly.