What Is Probate?

what-is-probate

In its simplest form, probate is the process of identifying and gathering the assets of a deceased person (decedent), paying their debts, and distributing their assets to their beneficiaries. Florida Probate Code can be found in Chapter 731 through Chapter 735 in the Florida Statutes. The rules that govern the Florida probate proceedings are found in Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

Under Florida law, there are two types of probate administrations: summary administration and formal administration. Probate administration can only apply to probate assets. Probate assets are what the decedent owned at the time of their death, or that were owned by them and one or more co-owners and did not have a provision for automatic succession of ownership at death. 

The typical probate assets include, but aren’t limited to:

  • Real estate that is titled in the sole name of the decedent.
  • Real estate in the name of the decedent and another person as tenants in common is a probate asset (unless it is homestead property).
  • A bank or investment account in the sole name of a decedent.
  • A life insurance policy, annuity, or retirement account payable to the decedent’s estate.

The probate process is an absolute necessity to legally pass ownership of the decedent’s assets to the beneficiaries and to finalize their financial affairs. If the decedent left a valid will it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent did not have a valid will, probate will be necessary to pass ownership of the decedent’s assets to the persons who are supposed to receive them.

Who Gets Involved in This Process?

Everyone’s situation is different. There are virtually endless variables to who may or may not get involved but you may find yourself dealing with any of the following:

  • The personal representative, otherwise known as the executor.
  • Whichever attorney the personal representative decides to hire to help guide them through this process
  • The persons that are filing claims in the probate proceeding. These are in relation to the debts incurred by the decedent. 
  • The Clerk of the circuit court in the county in which the decedent was living at the time of their death
  • The circuit court judge.
  • The IRS (Internal Revenue Service) may come for any federal income tax that was owed previously or the income tax that the probate estate may owe.

Who Makes The Ultimate Decisions?

The person who will oversee and administer the process will be a circuit court judge. They will decide whether or not the will of the decedent is valid or not. The judge will also examine evidence as to validate the identities of the decedent’s heirs. If the decedent nominated someone as a personal representative, the judge will decide whether that person is qualified. If everything checks out and the judge believes that the person is qualified to handle the situation, the judge will issue what is known as “Letters of Administration. This is important for the personal representative to maintain authority to oversee the administration.

Conclusion

At a glance, the probate process and the complications that come along with it can seem overwhelming. Here at FL Home Buyers we have been through this process before. Having worked hand-in-hand with some of the best law firms around, we are not afraid to take you from the starting point to the finish line. We have a team that is ready to assist you every step of the way. Give us a call and let’s find out if what we can offer works for you.