How to File Probate in Florida

Forms Relating to a Probate Actions

There are a number of forms that can relate to a probate action. Florida Courts Help does not provide any forms related to the Probate process.

If you have any questions about which form you need, please contact a lawyer.

For more information regarding Probate forms, please see the Florida Probate Code (Chapters 731 through 735 of the Florida Statutes), and the links provided below.

The Court Process

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.

The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration.

There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.”

• This type of administration only applies in limited circumstances.
• Probate administration only applies to 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.

Probate assets include, but are not limited to, the following:

• 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 property).

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries, if the decedent did not have a will.

Probate is also necessary to complete 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.

Filing with the Court

• Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived at the time of his or her death.
• A filing fee is required and should be paid to the clerk.
• After you file for probate, the clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

The Court Process

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances. Probate administration only applies to 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.

Probate assets include, but are not limited to, the following:

• 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 property).

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries, if the decedent did not have a will. Probate is also necessary to complete 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.
Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived at the time of his or her death. A filing fee is required and should be paid to the clerk. After you file for probate, the clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

Forms Relating to an Probate Action

There are a number of forms that can relate to an probate action. If you have any questions about which form you need, please contact a lawyer.

Probate Forms

The Florida State Courts System’s Self-Help Center does not provide any forms related to the Probate process. For more information regarding Probate forms, please see the Florida Probate Code (Chapters 731 through 735 of the Florida Statutes), and the links provided below.

Additional Resources

The following is a list of additional resources that may be helpful in self-help cases.

• Alternative Dispute Resolution Handbook PDF
• Certified Translator Assistance Website

Probate is the court-supervised process used to determine who receives the assets and inheritance of an individual after they pass away. This process differs for each state. In Florida, probate is required for almost every estate. There are several important Florida probate forms used throughout this process.

When someone passes away in Florida, probate is done through the local circuit court in the county which the individual resides at the time of death. This page provides information and PDF examples of the most important and common Florida probate forms. Most of the examples on this page are from Broward County’s Probate Court.

Examples of Florida Probate Forms

Living Will
The Florida Living Will allows someone to document their final wishes while they are still alive and of a sound mind. When someone passes away, wills enter probate to ensure assets are distributed to beneficiaries named within will.
Living Will PDF

Petition for Formal Administration
A Petition for Formal Administration is the standard document used to open a probate case in Florida. Formal Administration refers to the “standard” probate process used for most estates in the State of Florida after someone passes away. There are two other types of probate processes for estates that are valued at less than $75,000.
Petition for Formal Administration PDF

Petition for Summary Administration
The Petition for Summary Administration is a document used for Summary Administration. This is a more “expedited” version of probate. Summary administration is only available if the estate is valued at less than $75,000 worth of assets or in cases where the decedent has been deceased for more than two years.
Petition for Summary Administration PDF

Disposition of Personal Property Without Administration
The Disposition of Personal Property Without Administration is a document used in the rare event where an estate is eligible to skip the probate process altogether. In Florida, an estate is only eligible to forego probate when assets within the estate are valued at less than the amount of final expenses after the probate process is complete. In other words, if someone died with little to no assets, or was in serious debt, they may be eligible for Disposition Without Administration.
Disposition of Personal Property Without Administration PDF

Petition for Formal Administration of Intestate Estate
The Petition for Administration of an Intestate Estate Intestate is used when an individual died without an estate plan documenting their final wishes. In these instances, the probate court must determine who should receive assets of the deceased individual. Florida has a specific process to make this determination.

There are separate forms for both Formal and Summary Administration of an “intestate” estate. The Petition for Formal Administration of Intestate Estate is used for estates valued at $75,000 or greater.
Petition for Formal Administration of Intestate Estate PDF

Petition for Summary Administration of Intestate Estate
The Petition for Summary Administration of an Intestate Estate is used when the decedent passes away without a will and the value of their estate is less than $75,000. In these cases, their estate is eligible for Summary Administration through the probate court but still has to enter a process to determine who should inherit the property.
Petition for Summary Administration of Intestate Estate PDF

Petition to Determine Homestead
The Petition to Determine Homestead is a document used to determine who should inherit the “homestead” property of a deceased individual. The term “homestead” refers to any type of home used as the primary residence; this does not apply to “vacation homes” or any type of short term residence.
Petition to Determine Homestead PDF

Petition for Formal Ancillary Administration
A Petition for Ancillary Administration is used for non-residents of Florida who own property within the State of Florida. For example, if someone in Michigan owns a Florida vacation home and passes away while residing in the State of Michigan, their property will need to go through Ancillary Probate to determine who will receive the property.

There are separate forms for both Formal and Summary Ancillary Administration. The Petition for Formal Ancillary Administration is used when the property is valued at $75,000 or greater.
Petition for Formal Ancillary Administration PDF

Petition for Discharge
A Petition for Discharge is a document used in the final steps of the Florida probate proceedings. This document essentially shows that each step of the process has been completed by the personal representative and this is their formal request to be relieved from duty as their work is complete.
Petition for Discharge PDF

Speak With a Lawyer

In general, probate is a complicated process. In fact, in most cases, The State of Florida legally requires that you have an attorney throughout the probate proceedings. Having the necessary Florida probate forms and ensuring they are correctly filled out and filed is only one vital step in this process.

It’s highly advised that you obtain legal advice from an attorney specializing in Florida probate when navigating through probate court.

If you have any questions or concerns, contact our experienced lawyers for a free case review.

The Florida Probate Process Explained Step By Step

When it comes to understanding the Florida probate process, things can get a little complicated if you don’t have any experience with probate court or understanding “legal speak”. That’s why today, we’re taking a close look at the process of probate in Florida step by step.

The Florida Probate Process Step-By-Step

The Florida Probate Process: Filing the Petition for Probate

To begin the probate process, a petition for probate must be filed with the clerk of the Florida circuit court in the county where the testator (writer of the will) lived and the will must be admitted to probate.

The Florida Probate Process: Recognizing the Executor of the Estate

The personal representative of the estate as established in the will is then recognized by the court. If a will is not present or an executor of the estate is not established, you may petition the court to be assigned as the executor of the estate. If the court appoints you as the executor of the estate, you will be issued Letters of Administration by the court. These letters of administration give you the authority to settle the estate.

The Florida Probate Process: Notice of Probate

As the executor of the estate, you must then provide notice of probate to all interested parties. This includes notifying beneficiaries and heirs of probate. The executor must also publish a notice to creditors which notifies creditors of the probate of the estate. This notice to creditors must specify the date by which creditors must submit their claims.

The Florida Probate Process: Paying Debts, Taxes, and Final Expenses

The next step for the executor is to ensure that the final expenses of the deceased are paid for out of the estate, that any required taxes are paid, and that any outstanding debts are paid from the estate. There is a specific order in which outstanding debts and creditors must be paid with some claims taking precedence over others so that if there is not enough of the estate to cover all debts, those that take priority will be paid first.

The Florida Probate Process: Transfer of the Remaining Assets

Once debts, taxes, and final expenses have been taken care of, the executor of the estate must petition the court for permission to transfer the remaining assets of the estate to the beneficiaries as indicated in the will. If there was not a will present, the assets must be distributed as directed by Florida state law dictates. The estate is then concluded.

The Florida Probate Process Isn’t Quite That Simple, Though…

Although the steps listed above seem quite easy to understand and follow, there is a lot of red tape involved in the probate process and it’s important that you dot all of your I’s and cross all of your t’s in order for the probate process to go smoothly.

The best way to make sure that your administration of an estate is done correctly is to consult a probate attorney. Here at Weidner Law, we specialize in probate law in the St Petersburg, Florida area and we have assisted more than a few Florida residents with the probate process. With a probate attorney on your side, you will make sure that you don’t miss important deadlines or skip necessary steps in the probate process that could hold up the probate process or cause complications.

Common Mistakes Made During the Probate Process

Some of the most common mistakes that are made and steps that are forgotten when a probate attorney is not hired to assist with probate include:

• Waiting too long to start the probate process
• Not maintaining an open line of communication with heirs and beneficiaries of an estate
• Not keeping an accurate inventory of estate assets
• Failing to educate yourself on the probate process so that you know what to expect from the process
• Procrastinating on any part of the probate process
• Failing to file a 706 Federal Estate Tax Return
• Failure to secure assets of the estate
• Failing to identify property that is exempt from probate
• Failing to make the proper notifications to creditors
• Failure to keep proper accounting of expenses incurred during the probate process
• Failing to get the “ok” from the court to distribute assets among heirs and beneficiaries of an estate
• Waiting too long to market real estate
• Failing to conclude the estate
• Paying creditors and claims against the estate improperly or in the wrong order
• Filing a will that is not the most recent version of the will
• Failing to claim or properly utilize the available family allowance

Need Help with the Florida Probate Process?

If you need help with the Florida probate process attorney Matt Weidner can help! To find out how just call Weidner Law today at 727-954-8752 to make an appointment for your consultation.

What assets are probate assets, subject to probate administration, is an initial question in every probate administration in Florida. Probate assets are assets owned by the deceased at death – but only those assets that do not transfer automatically to someone else upon death.

The easiest way to understand which assets are subject to probate administration and which are not is to start with those assets which are not probate assets. Download the Assets of the Deceased Diagram for easy reference.

Joint Title With Right of Survivorship

The title of an asset, which typically denotes ownership, in the name of two or more persons. Real estate and bank accounts can be titled jointly with right of survivorship. When one owner passes, the remaining owner automatically becomes the owner of the asset. An asset that is titled jointly with right of survivorship is not a probate asset.

In some instances, it is not clear whether or not the joint title is intended to be one of survivorship, as opposed to a tenancy in common, or a convenience bank account.

Revocable Trusts

Assets within a revocable trust will be distributed by the trustee of the trust to the named beneficiaries as stated within the trust document. The assets in the revocable trust will not be probate assets.

Pay on Death / Transfer on Death

Banks and brokerage firms typically offer the ability to include a “pay on death” or “transfer on death” designation. Upon the death of the original owner, the bank or brokerage will simply give the account to the listed pay on death owner of the account.

Beneficiary Designation

Life insurance, annuities, IRA’s and retirement accounts will typically give the owner of the asset the ability to name a beneficiary upon the death of the owner. An asset with a beneficiary designation will not be a probate asset (unless the probate estate is listed as the beneficiary).

Tenancy By the Entireties

If a married couple owns an asset together, it will be treated as a tenancy by the entireties asset. The surviving spouse will become the owner of the asset upon the death of the first spouse. Any jointly owned asset will be treated as a tenancy by the entireties asset unless the asset is specifically titled in another fashion.

Florida Homestead

The primary residence of a Florida resident will be treated as Florida homestead property. Homestead property has its own set of of complex rules that will apply if the deceased had a surviving spouse or minor child at the time of death.

If an assets does not transfer to new owners by one of the methods set forth above, the asset is likely a probate asset, and will need to by administered in the probate process.

4 Options to Consider

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Ancillary probate is required in Florida when a nonresident dies owning a home, condominium, commercial building, vacant lot or other types of real estate located in Florida and the property is titled in the nonresident’s sole name. Ancillary probate in any state will add additional expenses to the overall costs related to settling an estate. In Florida in particular ancillary probate can get quite expensive for two reasons:

1. Florida Probate Rule 5.030 requires that “Every guardian and every personal representative unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida”; and
2. Section 733.6171 of the Florida Probate Code lists the total amount of fees that attorneys can reasonably charge for probating an estate, including an ancillary estate. These fees begin at 3% of the value of the probate assets located in Florida. So, for example, a vacation home valued at $300,000 could result in probate fees of $9,000.

How to Avoid Ancillary Probate in Florida

So how can out of state residents or foreigners who own real estate located in Florida avoid ancillary probate in Florida? There are really only four options, putting the property in joint ownership, listing it as a business entity owner, using an enhanced life estate deed, and placing the property in a trust.

Joint Ownership

The Florida real estate can be titled in joint names with one or more other owners with rights of survivorship. If you are married, then Florida recognizes a special type of joint ownership with rights of survivorship called “tenancy by the entirety.” If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded, otherwise, you may inadvertently create a “tenancy in common” instead of a joint tenancy with rights of survivorship.

Enhanced Life Estate Deed

While Florida has not passed a “transfer on death deed” or “beneficiary deed” law like a handful of other states, Florida common law does recognize a special type of life estate deed called an “Enhanced Life Estate Deed,” also known as a “Lady Bird Deed.” With this special type of life estate deed, the owner of the real estate, referred to in legalese as the “life tenant,” reserves the right to do whatever he or she wants with the real estate while alive, but after the death of the life tenant the real estate will pass outside of probate to the “beneficiaries” named in the deed, referred to in legalese as the “remaindermen.”

For example, the life tenant can mortgage the real estate, or even sell it, without the permission of the remaindermen. But if the life tenant still owns the real estate when he or she dies, then the remaindermen will inherit it outside of the probate process. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded, otherwise, you may inadvertently create a “regular” life estate instead of an “enhanced” life estate.

Ownership in a Business Entity

The owner can transfer commercial or rental real estate located in Florida into a business entity such as a limited liability company or a corporation, which will convert the property from real estate into personal property. Note that while this may avoid ancillary probate in Florida, it may not prevent domiciliary probate in the owner’s home state of residence. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded.

Trust Ownership

The owner can title the Florida real estate in the name of a trust, such as a revocable living trust. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded.

What Should You Do?

Which one of these options will work the best for you? This will depend on many factors, including your use of the property (secondary home vs. residential rental property vs. commercial property); your creditor situation and that of your intended beneficiaries; your overall estate planning and asset protection goals; and your budget.

Thus, you will need to sit down with your local estate planning attorney as well as a Florida estate planning attorney to discuss the pros and cons of each option and then decide which one makes the most sense in your situation.

When someone dies, you (as an executor or administrator of the estate) are not required by law to file probate documents. However, if you do not file probate documents, you will not be able to legally transfer title of any assets that exist in the decedent’s name. So while you may not be required to file, it’s likely in your best interest to do so.

Before we go any further, let’s talk about what probate actually is: it’s often referred to as the process of “proving a will,” but that can be a bit misleading because estates often go through the probate process even when there isn’t a will.

A more thorough explanation of probate is that it’s the process through which a court oversees and approves the management and distribution of a deceased person’s (decedent’s) assets — whether there is or isn’t a will.

You may have noticed from the above description that the key purpose of probate is handling the decedent’s assets. So what happens if someone dies without any distributable assets?

Technically, in that case, you don’t have to file probate because there’s nothing to distribute. But that doesn’t mean you’re immediately off the hook with the court.

Requirement to File a Will

If you are aware that someone has died with a will, regardless of their financial situation, most states require that you file that will with the probate court. Filing a will isn’t the same as filing probate documents (which include a Petition for Probate). Filing a will is just that — filing the will.

If you knowingly fail to file an existing will, you could be liable in both criminal court and civil court for damages resulting to any party who would have benefited from the estate.

Potential beneficiaries and creditors have a right to be made aware that they may have an interest in the estate.

So What Could Happen If You Don’t File Probate Documents?

Even if you file the will or if there’s no will at all, filing probate documents may still be necessary to resolve the estate.

1. Legal title to assets could be clouded.

If the decedent held assets — such as a home, a car, or a retirement account without a named beneficiary — those cannot be passed on without court approval through the probate process.

2. Heirs could have legal claims against you.

If the decedent died without a will but had assets, those assets cannot be lawfully distributed without the probate process determining the appropriate priority of inheritance through the state’s intestate succession laws. If probate documents are not filed, heirs may not receive what they are legally due and could sue.

3. Problems with an existing will could remain unresolved.

If an existing will has a potential problem — such as questions about the competency of the decedent at the time of signing or the validity of the signatures — that can only be addressed through the probate process.

How to Avoid Probate

Most of those problems could be avoided by taking certain steps prior to death that are intended to safeguard assets and avoid the probate process, like putting assets in a trust.

But if previous actions haven’t been taken, failing to file probate documents could create a legal quagmire with unfortunate consequences.

If you’re overwhelmed by the cost of hiring a probate attorney or the work involved with filing yourself, let us help .

Here are the basic steps for how to probate a will in Florida:

• Locate the Original Will. Under Florida law, the original of the will needs to be probated. If the original cannot be located, it is presumed destroyed with the intent to revoke the will. Under Florida statute 732.901, the original will is supposed to be deposited with the clerk of court where the deceased resided within 10 days of receiving information that the testator is dead. If the original will cannot be located, but the presumption of revocation is overcome, testimony of at least one disinterested witness will be required to admit the will to probate if a copy can be located, under Florida statute 733.207. If a copy cannot be located, the testimony of two disinterested witnesses is required.
• Give Required Notices to Beneficiaries, Surviving Spouses, and Creditors. Florida law requires that a Notice of Administration be provided to beneficiaries named in the will, as well as surviving spouses. The Notice of Administration provides important information, such as the deadline for challenging the validity of a will, and alerts the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowance. Known creditors must be given a Notice to Creditors, stating that the creditor has 90 days within which to file a creditor claim in the estate. Notice to Creditors must also be published in the local newspaper, alerting such creditors of the deadline for filing creditor claims.
• Marshall Assets, Preserve and Protect. Once the estate has been opened and letters of administration issued to the personal representative, the personal representative should take custody of the assets of the deceased that are properly part of the probate estate. For bank accounts, brokerage accounts, annuities, and insurance payable to the probate estate, the personal representative should retitle such accounts into the name of the estate and/or move such accounts into new accounts in the name of he estate. Normally, positions in stocks would be turned into cash (or reduced) so as to avoid any losses on estate assets. Real estate would be insured, secured, and listed for sale (or distributed to the beneficiaries). Homestead property of the deceased is not normally considered an estate asset so is handled differently. During this process, normally at the beginning, an estate inventory is filed with the probate court and sent to all of the beneficiaries.
• Creditors, Taxes, Disputes and Other Messy Stuff. These are the things that cause estate to be tied up for years and consume large amounts of money. Creditor lawsuits can go on for years. If the estate is subject to the estate tax, it will require a minimum of two years to close the estate, usually longer. If someone challenges the validity of the will, that process could take years as well and be very expensive. If the estate must deal with real estate, business interests, patents, art, or a wrongful death claim, such could tie up the estate for years. Some estates have all of these issues and more. If the estate has none of these issues, the estate should be able to be closed in under one year, sometimes even faster.
• Distribution to the Beneficiaries. The personal representative makes distribution to the beneficiaries after all of the difficult and messy issues are resolved. The personal representative might make interim distributions during the administration of the estate, or might wait and only make final distribution to the beneficiaries. For the final distribution, the personal representative can issue a plan of distribution and final accounting to the beneficiaries, to which they can object. In estates with good harmony, the personal representative might only issue an informal accounting and informal plan of distribution, to which they could agree with by signing a waiver or similar document.
• Discharge and Accounting. The personal representative, at the conclusion of the estate administration, will file a final accounting, plan of distribution, and petition for discharge with the probate court. If the accounting and plan of distribution was waived by the beneficiaries, those documents would not be filed. The clerk’s office at the probate court will review the petition for discharge to ensure that all requirements of a proper probate administration have been complied with, such as filing the inventory, paying (or successfully disputing)all creditor claims, and filing either the final accounting and plan of distribution (or waivers signed by the beneficiaries for such documents).

Whenever a deceased person leaves titled assets in his/her name alone, a petition for probate may be filed that allows distribution of the decedent’s assets. The Court oversees the estate to make sure debts are paid and proper distribution is made. Depending on your case type, you may need to contact an attorney to discuss your situation and what type of action should be filed, if necessary.

As in all probate proceedings, a hearing may be required when estate cases are presented to the Court for consideration of all orders.

Representation

Every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in the State of Florida, pursuant to Florida Probate Rule 5.030.

Wills

Wills may be placed on deposit after a person has died. In the State of Florida, wills are not placed on deposit prior to a person’s death.

Confidential Documents

Certain documents within estate cases are marked as confidential pursuant to Florida Statutes and Rules of Court. As a result of The Florida Bar v. David Edward Olson (2008), the Office of the Clerk of Circuit Court was directed to hold certain original wills for safekeeping.

Such wills are of individuals believed to be deceased whose wills are not accompanied by the information required by Chapter 732.901(1), Florida Statutes for deposit with the Clerk.

Forms

You may access printable Probate and Estate forms from our Probate Forms page. These forms are also available for purchase at both of our Legal Resource Center locations.

Simple answer: No, not all Estates have to go through probate in Florida. However, the real question is whether all assets have to go through probate in Florida. And, the answer is no.

Unfortunately, answering this question requires an analysis of each estate. Below you will find some of the steps that I go through in order to determine whether or not the client needs an estate to be probated.

To really get at the root of this question you have to look at how things get done with the estate’s assets. For example, when your mother or father passes away, how do you get access to the funds in the bank account? How do you get title to their house? Generally speaking, there are only three ways to transfer assets in Florida.

Joint Ownership with Right of Survivorship

Now let’s talk about the first way to transfer assets in Florida – Joint ownership with right of survivorship (“JOWRS”). JOWRS is a concept or a legal construct that allows multiple people to own an item, real estate, bank accounts, vehicles etc.… Depending on the relationship of the parties and the language on the title, the asset may pass or transfer to the joint owner immediately upon death without the need for a probate.

To determine whether this applies, you have to look at the actual title to the asset. For example in the instance of the piece of real estate you need to look at the deed (quitclaim deed, warranty deed, life estate deed). For a non-married joint ownership, you must have language contained in the deed that says, or something substantially similar to, “joint ownership with right of survivorship.” If you see this language, then likely no probate is needed for this property.

When property is bought by a married couple, the analysis gets easier. Florida law provides a presumption of “with right of survivorship” when the properties acquired by a husband and wife jointly (and they have remained married). This is actually referred to as tenants by the entireties, but don’t get caught up in the legal mumbo-jumbo. So, when you’re looking at the deed and the Grantee is “John and Jane Smith, husband and wife,” probate is likely unnecessary.

Therefore, if the only remaining assets was this piece of real estate where JOWRS is present, no probate would be necessary at all, and this is an an example of when not all states have to go through probate.

Beneficiary Designations and Agreements

Now let’s talk about the second way to transfer assets in Florida. The second main way to transfer assets in Florida is by agreement.

Agreements come in different types and forms. For example, beneficiary designations on bank accounts are essentially agreements with your financial institution that says: “upon my death, cut a check to “X.”

Other common examples are life insurance policies and annuities. Both of these are simply agreements with financial institutions for them to make a payment upon your death. When you have this type of agreement in place, your Bank will dispose of that account to the intended beneficiary immediately upon your death. You do not need to seek the authority or the permission of anybody else to gain access to those funds. Therefore, no court approval or probate is needed to distribute those assets in the bank account to the intended beneficiary.

So, if the decedent only had a bank account in which their beneficiaries were designated, more than likely no probate is needed for that estate.

Probate

Now let’s talk about the third way to transfer assets in Florida. If you do not have joint ownership or an agreement, then unfortunately you are going to have to seek authority to transfer those assets.

The only entity that has the power to authorize you to transfer someone else’s assets is a judge. The court process of determining who is the rightful heir, determining who the creditors are, and determining how these assets need to be distributed is probate. There are many steps to a probate, including but to limited to: addressing creditors, selling real estate, distributing assets, and liquidating assets. However the heart of the probate is seeking authorization to handle a decedent’s assets and personal property.

Let’s go through an example. If ta person has a bank account, and if there are no beneficiary designated nor is there an agreement between the decedent and the financial institution, then when that person passes away, the financial institution does not know how to distribute the money in that account.

Think of it from the financial institution’s perspective. The financial institution has an account with $10,000 of the decedent’s money in it, but they don’t know who rightfully gets that money. What if they give it to the wrong person? Is the Bank liable to the rightful heir?

Therefore, in many cases such as this, you’ll hear the bank for the financial institution say we need “an order from the court” or “letters of administration/testamentary”. Essentially, the bank is saying go to court and get a permission for us to distribute at the decedent’s assets.

Conclusion:

I hope this article has answered your questions. If not feel free to contact us, and we will be happy to discuss the matter and provide a free initial consultation. There are a few different types of probates, but really they boil down to two main types: a summary administration or a formal administration. I will talk about both of these types of probate in future posts but for now just understand that unless there is joint ownership with rights of survivorship or an agreement governing in asset, then more than likely a probate will be necessary.

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Simple answer: No, not all Estates have to go through probate in Florida. However, the real question is whether all assets have to go through probate in Florida. And, the answer is no.

Unfortunately, answering this question requires an analysis of each estate. Below you will find some of the steps that I go through in order to determine whether or not the client needs an estate to be probated.

To really get at the root of this question you have to look at how things get done with the estate’s assets. For example, when your mother or father passes away, how do you get access to the funds in the bank account? How do you get title to their house? Generally speaking, there are only three ways to transfer assets in Florida.

Joint Ownership with Right of Survivorship

Now let’s talk about the first way to transfer assets in Florida – Joint ownership with right of survivorship (“JOWRS”). JOWRS is a concept or a legal construct that allows multiple people to own an item, real estate, bank accounts, vehicles etc.… Depending on the relationship of the parties and the language on the title, the asset may pass or transfer to the joint owner immediately upon death without the need for a probate.

To determine whether this applies, you have to look at the actual title to the asset. For example in the instance of the piece of real estate you need to look at the deed (quitclaim deed, warranty deed, life estate deed). For a non-married joint ownership, you must have language contained in the deed that says, or something substantially similar to, “joint ownership with right of survivorship.” If you see this language, then likely no probate is needed for this property.

When property is bought by a married couple, the analysis gets easier. Florida law provides a presumption of “with right of survivorship” when the properties acquired by a husband and wife jointly (and they have remained married). This is actually referred to as tenants by the entireties, but don’t get caught up in the legal mumbo-jumbo. So, when you’re looking at the deed and the Grantee is “John and Jane Smith, husband and wife,” probate is likely unnecessary.

Therefore, if the only remaining assets was this piece of real estate where JOWRS is present, no probate would be necessary at all, and this is an an example of when not all states have to go through probate.

Beneficiary Designations and Agreements

Now let’s talk about the second way to transfer assets in Florida. The second main way to transfer assets in Florida is by agreement.

Agreements come in different types and forms. For example, beneficiary designations on bank accounts are essentially agreements with your financial institution that says: “upon my death, cut a check to “X.”

Other common examples are life insurance policies and annuities. Both of these are simply agreements with financial institutions for them to make a payment upon your death. When you have this type of agreement in place, your Bank will dispose of that account to the intended beneficiary immediately upon your death. You do not need to seek the authority or the permission of anybody else to gain access to those funds. Therefore, no court approval or probate is needed to distribute those assets in the bank account to the intended beneficiary.

So, if the decedent only had a bank account in which their beneficiaries were designated, more than likely no probate is needed for that estate.

Probate

Now let’s talk about the third way to transfer assets in Florida. If you do not have joint ownership or an agreement, then unfortunately you are going to have to seek authority to transfer those assets.

The only entity that has the power to authorize you to transfer someone else’s assets is a judge. The court process of determining who is the rightful heir, determining who the creditors are, and determining how these assets need to be distributed is probate. There are many steps to a probate, including but to limited to: addressing creditors, selling real estate, distributing assets, and liquidating assets. However the heart of the probate is seeking authorization to handle a decedent’s assets and personal property.

Let’s go through an example. If ta person has a bank account, and if there are no beneficiary designated nor is there an agreement between the decedent and the financial institution, then when that person passes away, the financial institution does not know how to distribute the money in that account.

Think of it from the financial institution’s perspective. The financial institution has an account with $10,000 of the decedent’s money in it, but they don’t know who rightfully gets that money. What if they give it to the wrong person? Is the Bank liable to the rightful heir?

Therefore, in many cases such as this, you’ll hear the bank for the financial institution say we need “an order from the court” or “letters of administration/testamentary”. Essentially, the bank is saying go to court and get a permission for us to distribute at the decedent’s assets.

Conclusion:

I hope this article has answered your questions. If not feel free to contact us, and we will be happy to discuss the matter and provide a free initial consultation. There are a few different types of probates, but really they boil down to two main types: a summary administration or a formal administration. I will talk about both of these types of probate in future posts but for now just understand that unless there is joint ownership with rights of survivorship or an agreement governing in asset, then more than likely a probate will be necessary.

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