Many people have heard the term “probate” before, but the word is often misunderstood. Even a lot of attorneys do not understand what probate actually is. So, don’t worry if you are not entirely sure what it means.
In fact, a lot of people get probate and estate planning confused. Estate planning is something that occurs while a person is alive. You may have a Last Will and Testament, also known as a “Will”, or a Revocable or Irrevocable Trust. You might also have a Living Will and a Power of Attorney. These are all documents that a person creates while he or she alive. We refer to the creation of these documents as “estate planning” or as your “estate plan.” You are planning for what will happen to your estate after you die. Probate, on the other hand, occurs after a person has died. This is a major distinction and something you should really pay attention to.
While a person is alive, he or she may have owned real estate and had banks accounts or other assets. After he or she dies, we now refer to everything they owned, including any debts, as their estate. For example, let’s say that John Smith has died, and he owned his home, had some money in a bank account and owed some money to various credit card companies. We would now refer to John and all of his assets and debts as the Estate of John Smith.
Probate is the legal process of transferring money or property from the name of a person who has died to the name of his or her rightful heirs and beneficiaries. The probate process likely involves the local probate court, a judge and a probate attorney.
When is Probate Necessary?
You will more than likely have to go through the probate process if any of these things happen:
- A bank, title company, lawyer, investment institution or insurance company, says you need:
- Letters of Administration
- Letters of Appointment
- Letters of Executor
- Appointment as Personal Representative, or
- Anything similar to any of the above.
- You want to transfer the decedent’s real estate into your name or want to sell it or rent it, but the property was only in the deceased’s person’s name.
- You want absolute certainty that all of the decedent’s creditors are cut off from chasing after your inheritance.
- Family members disagree about who should get what from the person’s estate or who should be in charge of actually administering the estate.
What if the person had a Will?
Unfortunately, having a Will does not avoid probate. The Will only indicates who gets what; it will not actually avoid probate. Let’s say that your dad had a Will and in it, he writes that you will get his house. You could not go to the county clerk or property appraiser office and show someone there a copy of the Will and ask that the property be transferred to your name. You would have to open a probate in order to get the property in your name.
When is Probate Unnecessary?
If the person who died only owned motor vehicles such as cars, motorcycles or boats, then probate is likely unnecessary. You can go to the local Department of Motor Vehicles with your ID, a copy of the death certificate and title to the vehicle, and you can transfer the property to your name there. The DMV has its own form, and you will probably not need to do probate.
Also, if the assets are titled in the name of a Trust or the real estate has certain language on the deed such as “joint tenants with right of survivorship”, then a probate may not be necessary. However, in these instances it is worth a call to us to let us confirm whether a probate is necessary or not. Our number is 305-456-3255.
What Types of Probate are there in Florida?
In Florida, there are four types of probate: Formal Administration; Summary Administration; Ancillary Administration and Disposition without Administration.
A formal administration is probably the most common type of probate in Florida. In a formal administration, we ask the court to appoint a Personal Representative, also known as an Executor, to administer the estate. The court will also issue Letters of Administration. Generally, if the decedent had a bank account or real estate, a formal administration will be necessary.
This type of probate could be used if the total value of the estate’s assets is less than $75,000.00. This probate should really only be used if the person has been dead for more than two years. In Florida, creditors have two years to make a claim against the estate. If you file a summary administration and the person has not been dead for more than two years and a creditor makes a claim, the court may require you to convert the summary administration into a formal administration, which can take extra time and money. In our opinion, it is generally best to do a formal administration.
An ancillary administration applies if the person who passed away owned property in Florida but was not a resident of Florida. This is common when a person resides in another state, such as New York, but owns real estate in Florida.
Disposition without Administration
This is rarely used and applies in very limited circumstances. Technically it is not a probate because there is no administration. It is generally used to reimburse an individual who has paid the final expenses of the person who died. To use this type of “probate”, the estate can only consist of exempt personal property with a value under $20,000.00, property exempt from creditors and nonexempt personal property which does not exceed the total of the amount of funeral expenses and reasonable and necessary medical hospital expenses of the last 60 days of the last illness. Generally, a person does this on his or her own and does not hire an attorney to handle it.
The Probate Law Firm is experienced in handling all types of probate. Each case is unique, and you are encouraged to speak with a member of our team to determine which type of probate is best suited for you. We are a Miami Probate Law Firm, but we accept and handle probates throughout all of Florida. You can reach us at 305-456-3255 or email us at [email protected].