What’s Probate?

Probate is court supervised control of a decedent’s estate to determine what the decedent’s estate consists of, whether the decedent’s will and any other instructions are legally enforceable, and who is entitled to the estate.

Upon death, a decedent’s separately titled property needs to be retitled to others to be accessed and utilized.  Absent a transfer on death beneficiary designation, such separate property is subject to jurisdiction of the applicable court under the probate laws of the decedent’s state or based on the location of the decedent’s real property.

Florida law uses probate both in the case of a decedent leaving a Will, which is called testate succession, and in the case of a decedent not leaving a Will, which is called intestate succession.

The two most common probate procedures in Florida are Summary Administration for older or smaller estates and Formal Administration for newer and larger estates.  Florida law also has a number of “hidden” rules, which are not necessarily consistent with common law of every state, but which apply to specific family relationships if the decedent was married or had minor children.

These special rules are potential “GOTCHAS” for do-it-yourselfers who do not have a working knowledge of Florida constitutional and statutory laws relevant to estate planning. Special family rights, taxes, creditors, validity of Wills and other instructions, and final distribution of assets are all the subject of a probate proceeding.

Because of privacy, cost and delay considerations, many clients choose to intentionally plan to avoid or minimize the prospects for probate after their deaths.

Your assets, family structure, needs, goals, budget, desire for privacy, potential for family conflict, income tax exposure, estate tax exposure, and need for asset protection will all need to be weighed to determine what the best estate plan design is for you, and whether a probate should be the primary post-mortem administration procedure for your estate.