Dealing with the loss of a loved one and going through the process of Florida probate law can be a lot to deal with. It is important to know how probate works in Florida and whether all assets are subject to this legal process.
Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us.
What is Probate?
Probate is a legal procedure that occurs after someone’s passing to ensure the rightful distribution of their assets. In Florida, a probate court judge oversees the estate administration, which involves identifying the decedent’s assets, settling debts & taxes, and distributing the remaining property to beneficiaries. Probate in Florida generally falls into two categories: summary administration and formal administration.
Summary Administration
Summary administration is a quicker and less costly process applicable to smaller estates in Florida. This method is used when the decedent’s assets, excluding exempt property, are valued at $75,000 or less, or when the individual has been deceased for over two years.
Formal Administration
For larger estates or those requiring a personal representative to manage the assets, formal administration is necessary. This more intricate and time-consuming process involves appointing a personal representative who acts on behalf of the estate. The personal representative is responsible for gathering the decedent’s assets, settling debts & taxes, and distributing the remaining property according to the decedent’s will or Florida’s intestate succession laws.
The Role of a Probate Lawyer in Florida Probate Law
Probate lawyers, also known as probate attorneys or estate lawyers, specialize in guiding families through the probate process. They provide legal advice, guide you through the complexities of Florida probate law, and ensure efficient administration of the estate with minimal stress for you and you and your family. A successful probate lawyer can help families understand their options, develop a plan for success, and represent their interests in court.
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Probate Assets vs. Non-Probate Assets
Determining the necessity of probate involves understanding the decedent’s assets and their titling. Assets generally fall into two categories: probate assets and non-probate assets.
1) Probate Assets
Probate assets are solely owned by the decedent at the time of death and typically require probate for distribution based on the will or Florida’s intestate succession laws. Examples of probate assets include:
Real property titled in the decedent’s name or held as tenants in common
Bank or brokerage accounts in the decedent’s sole name
Personal property, which can be furniture, vehicles, or jewelry
Life insurance policies without a named beneficiary or with the estate as the designated beneficiary
Interests in partnerships, LLCs, or corporations without specific provisions addressing asset distribution upon a member’s death.
2) Non-Probate Assets
Non-probate assets bypass the probate process and are directly transferred to designated beneficiaries or co-owners. These assets include:
Retirement accounts
Property or assets held in a trust
Jointly held bank or brokerage accounts with rights of survivorship, payable-on-death (POD), or transfer-on-death (TOD) designations
Life insurance policies with named beneficiaries
Real property held as tenancy by the entirety or joint tenancy with rights of survivorship
Florida’s Intestate Succession Laws
When a person dies without a valid will, their estate is considered “intestate,” and Florida’s intestate succession laws determine the distribution of probate assets. These laws prioritize the decedent’s surviving spouse, children, and other relatives, with distribution varying based on the family situation. A probate attorney can clarify how Florida’s intestate succession laws apply to a specific case.
Guardianship in Florida Probate Law
Guardianship is a legal process where a court-appointed guardian manages the affairs of someone unable to care for themselves due to disability, old age, mental illness, or other reasons. In Florida, common types of guardianship include incapacity guardianship and guardian advocacy. Incapacity guardianship involves a committee of medical professionals examining the proposed ward, while guardian advocacy is a streamlined process for individuals with developmental disabilities. A probate law firm experienced in handling guardianship cases can assist families throughout this complex process.
Probate Fees and Costs
Probate fees and costs in Florida vary based on the estate’s complexity and the type of probate administration. Some things that may affect fees are:
Court filing fees;
Personal representative fees;
Attorney fees; and
Appraisal or accounting fees.
Some probate law firms offer flat fees for probate and guardianship administration, which gives clients with upfront clarity regarding costs.
We’re Here for You. Talk to an Attorney at our Probate Law Firm in Miami, Florida
Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us.
This article was partly generated by the use of artificial intelligence or AI, and is provided as general information for educational purposes only. This article is not intended to provide specific legal advice, and should not be relied upon as a substitute for competent advice from a licensed attorney. To speak with one of our attorneys all you have to do is click here. If you’re interested in more in-depth ruminations on this area of the law written 100% by a live human being, visit the Florida Probate & Trust Litigation Blog by going to the home page for firm partner Juan Antunez.