The probate process can be confusing and difficult to navigate following the death of a family member. The following article from Florida Probate Attorney Lisa DiFranza features an overview of how the probate process works. If you need help navigating probate in Florida, contact DiFranza Law today.
The Probate Process
After a family member dies, the assets that your loved one left on earth are gathered up, hopefully, paid off, and anything left over is used to bless their surviving loved ones. These assets are called Probate assets. If your family member has a valid will that includes a succession plan all of their probate assets when they die, each of those steps will go very smoothly. When a family member doesn’t have a valid will or if a probate asset is missing, that’s when things can get very confusing and the process, called Probate, could take a lot longer.
The State of Florida’s Probate Code
Dying without a will is called intestate. Even when your family member dies intestate, probate assets rarely go to the State of Florida. Probate assets only go to the State when someone has no heirs. The Florida Probate Code regarding a decedent’s beneficiaries and how the assets will be dispersed can be found in Chapters 731 through 735 of the Florida Statutes. The order of priority of heirs is listed in Part 1, Chapter 732.
What Are Probate Assets?
Only probate assets can go through probate administration. Probate assets are personal assets owned solely by your family member or your family member’s estate.
Probate assets may include but are not limited to:
• Cash and cash equivalents
• Interests in a partnership, corporation, or LLC
• Life insurance policies and annuities
• Real estate
Non-Probate assets may include:
• Investment accounts that are payable on death (POD) or transfer on death (TOD)
• Life insurance or brokerage accounts listing another person as a beneficiary
• Real estate that is jointly owned by another party
• Pension and 401K retirement accounts
• Property that is held in a trust
Probate Asset Exceptions
There are exceptions to Florida’s intestate laws regarding distribution of assets. The most common exception is used to protect any dependents that your family member may have been supporting when they passed. If your family member has homestead property and exempt personal property, the State of Florida allows for a statutory allowance be provided to a surviving spouse that was not listed as a beneficiary. Provided it is requested within 6 months of when your family member passes away, a surviving spouse can request a 1/2 share of the homestead property if the property was solely owned by your family member when they passed away.
Probate Process Decision Makers
The Probate Process can involve a number of decision-makers including:
• A personal representative or executor
• A probate attorney representing you throughout the probate process
• Debt collectors (i.e., credit card companies and healthcare providers)
• IRS or state tax agencies
• The county clerk where your family member lived when they passed away
• The appropriate circuit court judge
Does a Personal Representative Need a Probate Attorney?
Even with the easiest of situations, the State of Florida recommends engaging a qualified probate attorney to assist you with your family member’s probate administration.
Lisa DiFranza is a Florida Probate Attorney who works closely with people in Florida throughout the probate process. The probate process can be confusing. Get the answers you need with DiFranza Law, a caring law firm that helps you understand your options, making one part of a difficult time a little easier.