Florida Estates


Tip: Knowing about the probate process can save you money.

Frequently Asked Ques tions

"Let Our Advance Worrying Become Advance Thinking and Planning"--Winston Churchill

What is Probate? 

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. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s 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 applies only in limited circumstances.

What are probate assets?

Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s 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.
For example:
· A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
· A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
· 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), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
· Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive, but is intended to be illustrative.

Why is Probate Necessary? 

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

We are located in Tampa Bay, Florida and can meet clients anywhere.

What happens to the homestead exemption after death of spouse?

Does Homestead survive death?

  • Every Florida resident is entitled to have his interest in the real property on which he resides (his “homestead”) exempt from forced sale for collection of money judgments.  After the owner’s death, this exemption passes to his surviving spouse and/or heirs at law who inherit the homestead.

  • If not  validly devised by will, the homestead passes upon the death of its owner outside the powers of the personal representative in the probate proceeding directly to the surviving spouse, if any, for life with a vested remainder to the decedent’s lineal descendants per stirpes.   If there is no surviving spouse and the homestead is not validly devised, the title passes by normal Florida intestacy to the heirs at law but outside the powers of the personal representative to sell.  If there is no lineal descendant surviving, the title passes to the surviving spouse under intestacy rules.

  •  What happens if you are survived by a spouse? Then, at least up until October 1, 2010, if you did not leave your homestead to your spouse outright and without any strings attached, then your spouse would receive what is referred to as a "life estate" in the homestead and your children would receive the remainder in equal shares after your spouse dies. Receiving a life estate in the property means that while the surviving spouse has the right to live in the property for his or her remaining lifetime, it also means that the surviving spouse has to pay all of the property taxes and insurance to maintain the residence. In addition, the surviving spouse cannot force the children to sell the property, and the children cannot force the spouse to sell the property. Today there are two ways around this strict rule:
    • 1. You and your spouse can enter into a prenuptial agreement or postnuptial agreement where the spouse who does not own the property waives all of his or her rights to the protected homestead. This will allow the owner of the homestead to leave the property to whomever he or she wants. 
    • 2. Effective October 1, 2010, the surviving spouse who is initially stuck with a life estate in the homestead can elect within a limited amount of time after the deceased spouse's death to divide the property so that the spouse will receive one-half and the children of the deceased spouse will equally divide the other half.

Who is the personal representative?

In deciding who will serve as a personal representative the court follows the following procedures: 

In testate estates (estates with wills):
1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(b) In intestate estates (no will):
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified. See Fl St. 733.301 for more information.  

How Much Does Probate Cost?

We try to keep our fees reasonable and attorney's vary based on the complexity of the estate. 
Besides attorney fees a probate administration has the following costs:
Filing fees: $400.00
Notice to Creditor: $75.00 (published in a local newspaper)
Misc Fees: $50.00 (copies, etc...)

Is the homestead considered a probate asset? 

If property is homestead property under Florida, it passes outside of the probate estate, even though it is the Florida probate court that determines the homestead status of the property, as well as who is entitled to receive the property.

What types of probate are there? 

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In Florida there are three types of probate. The type of probate you need depends on the value of the estate.

Formal Probate: This type is for estates that have a valiue of over $75,000. 
Summary Probate: Is for estates with less than $75,000.
Probate without administration:  This is the most basic probate in Florida. It can only be used when there is exempt personal property, no creditors and usually is only to pay funeral and medical expenses.

The type of probate you need is important because there are different procedures under the three mentioned here. For example, in there is no personal representative in a summary probate, but is required in Formal Probate.  

What is right of survivorship?

In Florida you can create what is called the right of survivorship with your property.  The benefit of this is that if you co-own property with the right of survivorship, the property automatically transfer to you or the other co-owner upon death of the other person. For example, Bill and George are co-owners of a condo and in the deed it says "Bill and George with the right of survivorship," if one of them dies, they do not need to go to probate to transfer the ownership to the other, it happens automatically.