How Does Probate Work With And Without A Will?

How Does Probate Work With And Without A Will?

March 30, 2023

1. What Is Probate?

2. How Does Probate Work?

3. Probate With A Will.

4. Probate Without A Will.

5. Is Probate Required?

6. How Much Does Probate Cost?

What is probate?

Probate is the legal process of identifying the assets of the deceased person (aka “the decedent”), satisfying the decedent’s debts when applicable, paying taxes, and distributing the decedent’s probate assets. In Florida, probate administration is a court supervised process.  

Determining whether the decedent had a valid Will is also part of the probate process.  

How does probate work?

The two main kinds of probate proceedings in Florida are formal and summary administrations.  

Formal Administration is the ordinary type of probate proceeding in Florida.  The administration is typically opened in the county where the decedent resided, but there are a few exceptions. The probate may begin with appointing a personal representative / executor to handle the affairs of the estate during the administration process. This person may be appointed according to the decedent’s valid Last Will & Testament or according to Florida’s intestate statutes (when there is no valid Will). Formal administration is required in Florida for any estate with non-exempt assets valued at more than $75,000 and when the decedent has not been deceased for more than two years. 

Summary Administration is a common type of probate administration if the total value of non-exempt assets are valued at $75,000 or less or if the decedent has been deceased for more than two years. Leggett Law Offices will advise if this type of administration is a good choice on a case-by-case basis.  Whether the decedent has a valid Last Will & Testament or not and if a personal representative needs to be appointed are considerations as well.  

A third less common type of probate is an Ancillary Administration.

Ancillary Administration is a type of Florida probate administration where a non-resident decedent’s probate was administered in their state of residence and the decedent left real property in Florida. This requires an ancillary probate to pass the real property to their heirs or beneficiaries.  There are a few other reasons, but this is generally the most common.

Probate With A Last Will & Testament

A Last Will & Testament is a legal document that determines who receives the decedent’s probate assets upon death. All assets may not be “probate assets”.  Therefore, a Will may not control the disposition of some assets upon the decedent’s passing. A Will may also nominate a personal representative / executor to handle the affairs of the probate estate. Florida law sets forth that a valid, Will has to be signed by the person making the Will (known as the testator) along with two witnesses, all signing at the same time together. It’s also good to have a “self-proving affidavit” at the end where the same people who signed the Will, sign again before a notary attesting that they all freely signed the Will together at the same time

Probate without a  Last Will & Testament

Sometimes, a decedent may have no valid Last Will & Testament upon death. Florida’s “intestate succession” statutes provide a guide of how to distribute the decedent’s probate assets and settle the decedent’s debts. Importantly, often this distribution scheme is not the testator’s intent nor how they may want their probate estate distributed. Hence, having a Last Will & Testament is a great way to leave personal instructions of what you want instead of Florida intestacy statutes controlling the distribution scheme.   

Is probate required?  

A Florida probate is required when the decedent was a resident of Florida and left probate assets that need to be properly administered through the probate process in order to transfer said assets to the heirs. Often, assets may be held or titled jointly with someone else and may not be a probate asset. If the assets have living designated beneficiaries, then these assets may also not require a probate administration to transfer to the heirs.

If the decedent was not a resident of Florida but left real property in Florida requiring a probate to transfer to the heirs, then a probate administration is necessary, even though not a Florida resident.    

A probate administration may also be required if the decedent was involved in a lawsuit pre-death and entitled to settlement funds post death or if the heirs are going to receive funds as a result of a wrongful death settlement. 

How much does probate cost?     

Probate fees and costs can depend on various factors including: the size of your estate, how complicated the probate administration may become, and if someone is contesting the administration or if all heirs agree.

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