Florida Probate

The purpose of Probate is to identify and gather the descendent’s assets, paying taxes, claims, and expenses of administration, and distributing assets to beneficiaries.

The contents of your Last Will and Testament and information regarding your finances are private matters during your lifetime. In Probate however, they become part of a permanent, public record.

The average probate takes anywhere from 6 months to 2 years. A lengthy Probate process happens because of poor planning.

Most people are aware that probate is expensive; most do not realize, just how much it really costs. There are two major expenses of probate the attorney’s fees and the personal representative’s fee. Generally, the fee paid to each is based on a percentage of the Gross Estate.

There are two methods of determining the size of an estate: Gross and Net. The gross estate is calculated by totaling the current market value of all of the assets in the estate. The net estate is the gross estate minus any debts and obligations of the decedent against the estate such as a mortgage on a home or any other liabilities.

Thus, the gross estate is always larger than the net estate unless there are no liabilities in which case the value is the same. Attorney’s fees alone are usually estimated to be from 3% to 10% of the Gross Estate.

Non Probate Assets
Non Probate Asset are not involved in the probate process. These assets may include:

Assets in a Living Trust
Accounts set up with a joint tenancy with right of survivorship provision,
IRA’s that designate beneficiaries,
Assets in a trust that designates a beneficiary, and
Life insurance policies that name beneficiaries.

Probate Assets

Probate assets are those assets that the decedent owned 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. These assets are subject to the Probate proceedings whether there is a Last Will and Testament or not. Examples:

A bank account or investment account in the sole name of a decedent
A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate.
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).

Why is Probate Necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries under the 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.


What happens to Probate assets if someone dies without a will?

If someone dies without a valid will, he or she is “intestate.”

If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs with priority given to:

1. Spouse
2. Lineal descendents
3. Parents
4. Brothers and sisters
5. Remote heirs

More information on Florida Probate Assets without a will can be found in the Florida Bar website