Probate

Certain assets by their very nature can avoid probate.  Probate is not necessary to transfer certain jointly owned non-probate assets because these assets pass by operation of law.  In Florida, joint ownership is available through “joint tenancy,” which works well when couples acquire real estate, vehicles, bank accounts, or other valuable property together.  Additionally, “tenancy by the entirety” is available for married couples in Florida.  These provide for a “right of ownership,” transferring the ownership to the surviving joint owner.

Bank accounts can be transferred without going through probate if the account is designated as “payable-on-death.”  Your beneficiary has no right to this asset while you are alive as you still own and control it.

Stocks and bonds can be designated as “transfer-on-death” (also called beneficiary) form.  The beneficiary named will inherit this type of account automatically at your death.  Again, it is important to check this designation as assets change over time as do intended heirs.

Similar to “payable-on-death” and “transfer-on-death” accounts, “Individual Retirement Accounts” (IRAs) are distributed based on beneficiary designations upon the account-holder’s death.  You should consult with a Board Certified Tax Lawyer to learn about the options available for transferring IRAs and the relevant tax implications.

As long as a life insurance policy is payable to an individual or entity other than the policy owner, life insurance policy death benefit proceeds are transferred directly to their beneficiaries.

In Florida, you can make a “revocable living trust” to manage assets during your incapacity and then to avoid probate.  Trusts can be used for all assets you own including real estate, bank accounts, vehicles, IRAs, etc.  A trust document names someone to take over as trustee after your incapacity or death (called a successor trustee) so that they can transfer the property controlled by the terms of the trust to the trust beneficiaries without probate court proceedings after your death.  You may amend or revoke your living trust so long as you have the capacity to do so.

Trusts are always recommended to avoid ancillary probate for out-of-state real and tangible personal property owned.  The standard probate avoidance techniques – revocable trusts, joint with right of survivorship ownership, life estates – will work to avoid ancillary probate as well.  Steps taken with respect to real property should also include related tangible personal property, or probate may be avoided for the real property, but still required for the tangibles.

To consult with Board Certified Tax Attorney Fredric Jacobs, Esq. and an experienced estate planning attorney, contact our office at (941) 906-1231.

            Probate can be necessary or appropriate in certain cases.  However, these are some common disadvantages to probate.  Probate in Florida can be a lengthy process which can begin as soon as a death certificate is issued or can be brought years after a death.

Because creditors are paid before beneficiaries in probate, beneficiaries usually must wait until the process of probate is over to receive their payout.

Financial costs are involved in commencing and administering a probate proceeding, including filing court fees, the fees of the Personal Representative, and the fees of the attorney administering the estate.

To consult with an experienced estate planning attorney about whether probate would be the most advantageous process by which to administer your estate, contact our office at (941) 906-1231.

Probate can be a good option for those who do not want to spend money during their lifetime on legal fees to prepare Trust documents.  Allowing an estate to go through probate would instead cause the cost of distributing the estate to come out of the heirs’ inheritances.

    Probate is also a good option if the deceased is owed assets or payments at the time of death.  Probate may be necessary in this situation for the Personal Representative to collect on behalf of the estate.  Some examples of cases in which this is useful is when a promissory note is payable to the deceased, an inheritance due was not paid to the deceased prior to death, or in the situation of a personal injury claim if the estate has a wrongful death or other suit against the party that caused the death.

    If the deceased has unresolved tax debts with the IRS or another taxing authority, probate allows the Personal Representative the chance to negotiate and attempt to reduce or resolve the tax debt.

    Lastly, probate can sometime benefit the family by having the court oversee and make decisions in abnormally complex family situations or disputes.

    If you have questions about probate, contact one of our experienced estate planning attorneys at (941) 906-1231 to review your individual needs and receive personalized recommendations.

  Probate assets include assets for which the deceased person was the sole owner or jointly owned assets which lacked provisions for automatic succession of ownership at death.  Non-probate assets include jointly held property for which ownership includes the “right of survivorship.”  In this situation, the surviving owner automatically owns the property when the other owner dies.  Other examples of “non-probate assets” are  assets titled in the name of a trust or assets that have formal “beneficiary distribution” assignment to them, such as IRAs, life insurance policies, or payable-on-death accounts.

    Probate is a court-supervised process for identifying and gathering the assets of a deceased person, paying their debts, and distributing their assets to beneficiaries only after some of these assets are used to pay the costs associated with probate court.

    The two main types of probate administration are formal administration and summary administration which occurs if assets are less than $75,000.  If assets are less than $6,000 a non-court supervised administration proceeding called disposition of personal property without administration occurs.  In Florida, the person in charge of the estate is called the personal representative.  The personal representative is in charge of giving notice of the probate proceedings to “known or reasonably ascertainable” creditors in order to ensure all of the deceased’s debts are paid.

    Beneficiaries are the people who inherit assets from the deceased.

    If you are looking to avoid probate through estate planning or are currently going through probate or ancillary probate and need legal advice, contact one of our experienced attorneys at (941) 906-1231.

Question:     When is ancillary administration necessary for non-Florida residents who die owning real estate in Florida? What are the options for ancillary administration?

Answer:    When a resident of another state dies owning real estate in Florida titled in the decedent’s name, probate proceeding must be commenced to validly transfer the property after the death.  This is the case even if a personal representative has been appointed in the decedent’s home state.  If the decedent left a will, any person may petition to admit the Foreign Will to Record in the Florida County where the property is located.  The person petitioning for admission of the will should have “authenticated copies” (learn more about authenticated copies here).  The probate court will appoint an ancillary personal representative who is qualified under the Florida Probate Code who will administer the ancillary probate for the Florida estate. There are other options available to certain ancillary estates that have  values less than $50,000 called short form ancillary administration.  There is also a proceeding called summary administration available to estates with property subject to Florida probate that are worth less than $75,000.  If you are seeking to administer the Florida assets of a non-Florida resident decedent who has died, contact Bach & Jacobs, P.A. to learn which options are available to you under Florida Law.

Question:  If I am the personal representative for an estate in Florida, am I required to have an attorney for the probate administration in the Florida circuit court?

Answer:    Florida law requires an attorney in a formal probate proceeding except in the rare case where the personal representative is the sole interested person. However, Florida probate procedures are complicated and most non-lawyers will have a challenging time trying to proceed without an attorney.   Just determining who fits the statutory definition of “interested person” requires an understanding of the Florida Probate Code and the Florida Rules of Probate, which apply to even the most basic estate administration.  If you have been named the personal representative in the will of someone recently deceased and you would like assistance with the administration of the estate, contact Bach & Jacobs to meet with one of our attorneys.