It is not necessarily a negative thing to have your Last Will and Testament document go through the Florida probate court system. However, it leaves open the possibility of having your family members waste their time and money, along with emotionally draining them in this already very difficult time. This is why many attempt to evade probate altogether. Well, for this, please follow along to find out whether every will must go through the probate process and how a proficient Broward County wills lawyer at The Probate Lawyers can help you work on an estate planning strategy to avoid this legally.
What Is Probate, and What Does It Accomplish in Florida?
In Florida, probate is the court-supervised process by which the descendant’s Last Will and Testament document is validated, and an executor is appointed to manage the grantor’s estate, pay off their outstanding debts, and distribute their remaining assets to the designated beneficiaries. Probate will occur in the circuit court in the county where the decedent resided. It is the court’s responsibility to ensure that the administration of the estate proceeds in accordance with Florida probate law.
What Happens During Florida Probate?
- A formal petition for administration is filed in the circuit court
- The court will appoint someone to serve as the personal representative (executor) of the estate administration process
- Beneficiaries, legal heirs, and creditors are notified of the process
- Assets held in the estate are identified and formally inventoried by the court
- Valid debts and taxes are paid from the estate
- The remaining assets are distributed in accordance with the will or Florida intestacy laws
Does Every Will Have to Go Through Probate in Florida?
It’s important to understand that, in Broward County and across Florida, not every will requires an automatic, full probate process. Whether probate is required depends on how the assets were held at the time of death, and whether or not there are any named beneficiaries. Even if a valid will was created and properly executed, probate may still be required for certain assets. The court must validate a will before the personal representative appointed by the court can begin distributing assets in accordance with the will or Florida intestacy laws.
Which Assets Must Go Through Probate?
In general, only assets titled solely in the name of the decedent without a beneficiary designation require probate. Those that are jointly held or that have established beneficiary designations typically do not undergo this process. In the Florida probate procedure, assets solely owned by the decedent cannot be legally transferred to beneficiaries until the court has approved distribution.
Examples of Assets That Typically Require Probate
- Real estate titled solely in the decedent’s name
- Bank accounts without named payable-on-death beneficiaries
- Vehicles owned solely by the spouse
- Investment accounts without established transfer-on-death designations
- Wages owed solely to the decedent
- Personal property
Which Assets Can Avoid Probate in Florida?
Alternatively, a number of assets may avoid the complex probate process entirely if they are held in a manner that results in their automatic transfer upon the death of the decedent. These are referred to as non-probate assets.
Common Non-Probate Assets
- Jointly owned property with survivorship rights
- Transfer-on-death (TOD) investment accounts
- Payable-on-death (POD) bank accounts
- Life insurance policies with beneficiary designations
- Properly structured and funded revocable living trusts
- Retirement accounts with named beneficiaries
What Is Summary Administration in Florida?
A will may bypass the Broward County probate process if it is affiliated with a small estate. That is, in the state of Florida, a will may undergo simplified probate, otherwise known as summary administration, as per Florida Statutes Chapter 735. This is an option for estates valued less than $75,000, or if the grantor passed away at least two years prior. In either case, there may be fewer requirements that the executor must abide by, and overall, there will be minimal court supervision.
When Summary Administration May Apply
- The estate, excluding non-probate assets, is $75,000 or less
- The decedent passed away more than two years ago
- There are no ongoing creditor claims
- The petitioner qualifies in accordance with Florida estate and probate law
Does Having a Will Avoid Probate?
There is a widespread misconception that having a will means that there is no need for probate. However, this is far from the truth. While a will plays a critical role in determining how assets are handled following someone’s passing, probate is the process by which those instructions are carried out. As such, it’s imperative to understand that:
- A will does not avoid probate
- Probate is necessary to validate the will
- Only eligible, non-probate assets will bypass the probate process
- Trusts are the primary tool many use to avoid this process
How Probate Works in Broward County
In Broward County, probate cases are filed with the Probate Division of the Seventeenth Judicial Circuit Court. While Florida estate law applies, local procedures may vary from court to court, which is why working with a local estate planning attorney in these matters is critical.
Important Local Considerations
- The probate petition must be filed in the county where the decedent resided before their death
- Court approval is typically required for the transfer of major assets
- Creditors have strict notice and claim deadlines
- Local administrative regulations can impact the timeline of the probate process
What Strategies Can Reduce or Avoid Probate?
If you do not have a small enough estate or solely-owned assets that you still wish to keep private, there may be other means to avoid the probate process. However, these strategies must be implemented properly before death to reduce or completely avoid probate exposure in Florida.
Probate Avoidance Planning Tools
- Creating and properly funding a revocable living trust
- Titling assets with survivorship rights
- Updating POD and TOD designations on a regular basis
- Coordinating estate planning documents with asset titling
Contact an Experienced Broward County Estate Planning Lawyer Today
If you are ready to begin planning your estate in Broward County, the team at The Probate Lawyers is ready to assist you. Local guidance is critical, as the procedures of the local courts can vary by jurisdiction. Additionally, we understand how overwhelming the estate planning process can be, which is why we can assist you in exploring your options so you can have peace of mind for the future.
