In most cases in Florida, a probate filing will be necessary to distribute the assets of a person who has passed away. As St. Augustine probate attorneys, we understand that the loss of a loved one is a grieving process that is not easy to overcome. As Florida estate lawyers we strive to do everything within our power to take the stress off of you, and provide a streamlined process after the loss of a loved one. Our experienced St. Augustine estate attorneys will guide you through the different types of probates, always working with your best interests in mind. If you have a specific question concerning a probate, make sure to check our Frequently Asked Questions & Answers below.
In Most Cases, Probate is a Mandatory Process After the Passing of a Loved One
Probate is the formal term for the process of distributing an individual’s assets when an individual passes away with or without a will. Absent special trust planning, a St. Johns County probate action will be necessary for the beneficiaries to gain access to the following assets:
- Bank accounts with no beneficiaries on file (no “POD” form)
- Certain life insurance policies
- Real estate not jointly owned
- Financial investment accounts with no beneficiaries on file
- Individual Retirement Accounts (IRA’s) with no beneficiaries on file
- Certain assets in which creditors have interests
- The contents of safety deposit boxes
- Personal property of the decedent (such as jewelry, paintings, etc)
After the court establishes that a valid will exists, the court will admit the decedent’s will to probate, and order that the assets be distributed in accordance with the provisions in the will.
Florida Law Requires the Assistance of an Attorney in Most Probates
In almost all formal probates, Florida law requires the assistance of a Florida probate lawyer. There are a few exceptions to this, mainly relating to “disposition without administration” (which applies to very small estates) and those certain probates where the personal representative is the only beneficiary of the estate. If you are uncertain about whether your probate will require an attorney, one of our St. Augustine probate attorneys can discuss that with you.
Contact Us for a Free Consultation Concerning Your Probate
At Ginn & Patrou, our priority is to always ensure that our clients are guided properly and efficiently throughout the probate process. Our estate attorneys will work extensively to ensure that your specific needs are met. Contact our office today at 904-461-3000 to schedule a free phone consultation, or contact us online by clicking here .
Located in historic Saint Augustine, Ginn & Patrou is able to serve clients throughout Northeast Florida including Palm Coast, Ponte Vedra, Jacksonville, Daytona Beach, Palatka, Saint Johns County, Putnam County, Clay County, Duval County, and Volusia County.
Frequently Asked Questions
What is Probate?
Probate is the process of distinguishing and distributing assets of the decedent, which applies to cases in which the decedent passed away with a will, and cases where the decedent did not have a will. If a will does exist, the probate process will ensure that the will is valid. There are two primary types of probate: Formal Probate Administration (estates over $75,000) and Summary Probate Administration (estates $75,000 and under). If the estate involves only personal property, there are alternative options such as a non-court supervised administration known as Disposition of Personal Property Without Administration, however this route is very uncommon and not regularly used. In most Florida Probates, the use of a Florida probate lawyer is required by Florida law.
What Are Probate Assets?
Any category of probate administration pertains to the assets the decedent left behind, whether the assets were addressed in a will, or whether the decedent died without a will. Assets can be either under the sole name of the decedent, or jointly owned property. Persons specifically listed in the will that are entitled to assets are known as beneficiaries. Beneficiaries eventually receive the assets the decedent left for them after paying certain debts (if any). Specific types of assets include:
- Non-homestead real estate properties labeled in the decedent’s name (depends on the title on deed).
- Bank accounts, or any kind of investment account (if previously owned solely by the decedent with no beneficiary).
- Personal property such as jewelry and household furnishings.
What Assets do not Require Probate?
In general, it is always recommended to file a probate action because the filing of a probate action can toll how long certain creditors of the estate have to make claims on the assets of the estate. Absent concern about creditors, certain assets can pass outside of probate, including:
- Jointly titled real estate
- Assets held in a living trust.
- Life insurance policies with a living beneficiary
- O.D (payable on death) bank accounts with a living beneficiary
- Co-owned bank accounts.
If the decedent owned real estate in St. Johns county that becomes a probate asset, then a probate action will need to be filed in St. Johns County.
Why File Probate?
In most cases, the filing of a probate is required by Florida law if probate assets exists, and any illegal transfer can be set aside by the probate court. Probate is necessary to distribute assets listed within a will to their rightful beneficiaries. As previously stated, the will must be declared as valid prior to anyone receiving any kind of asset. The probate process is also essential to concluding the decedent’s financial matters after their death, and also assures that all creditors are paid throughout the administration of the decedent’s estate.
What if a Person Dies Without a Will?
If the decedent did not leave a valid will or any will at all, then that decedent identifies as an intestate person. In this situation, probate administration is required in order to transfer ownership of the decedent’s assets to any individual who is an entitled beneficiary. If the decedent passed intestate (without a will), his/her estate will be distributed to their proper heirs (normally family members) according the order of antecedence, minus certain exceptions under Florida law which give spouses and minor children a special interest in homestead property, exempt personal property, and certain statutory allowances.
How Long Does Probate Take?
Initially, a probate must be open for a three-month creditor claim period, which even applies to the most commonly used routes of probate administration. Therefore, the length of the probate administration process usually depends on the aspects of the case. The length of probate administration also corresponds to the type of administration being used such as formal probate, summary probate, disposition without administration, or another alternative option. In some cases, where a decedent died two or more years ago, the probate process can be significantly shorter, sometimes lasting less than a month in small estates.
What is a Personal Representative (PR)?
In the state of Florida, the court will appoint the PR designated in the decedents will, or a close family member if no one is designated PR (or if there is not a will). Personal representatives usually range from family members to attorneys and trust companies, all depending on the case itself. A judge appoints a Personal Representative to administer the decedent’s probate estate. The term “Personal Representative” is used in the state of Florida rather than other commonly used terms such as “Executor” or “Administrator.” It is an obligation of the personal representative appointed to administer the probate estate pursuant to Florida Law, and pursuant to the decedent’s will. Listed below are legal duties that must be fulfilled by the personal representative:
- File any tax returns or pay taxes that are properly due.
- Object to improper claims.
- Identify and distribute probate assets to all entitled beneficiaries.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Employ professionals to assist in the probate administration process.
- Publish a “notice to creditors” in the newspaper in order to give notice to potential claimants.
Acting as personal representative is a difficult and often challenging process which involves careful review of Florida law. A St. Augustine estate attorney from Ginn & Patrou, P.A., can help you through the process.