What Is Probate and When Is It Required?

blocks lined up that spell out "probate"

The article is co-authored with Estate Planning & Probate attorney Paige Hammond Wolpert.

What Is Probate?

Probate is a court supervised process whereby the validity of a decedent’s Last Will and Testament is proven, a legal representative is appointed to the administer the estate (in Florida this person is referred to as a “Personal Representative”), and the estate is settled so that valid creditors are paid and beneficiaries receive distributions of the decedent’s property to which they are entitled.  If the decedent dies without a Last Will, also referred to as dying intestate, a similar process is followed.  However, the individuals who receive the decedent’s property (referred to as “heirs”) are determined by the Florida law.

Are There Different Types of Probate?

There are two types of probate administrations.  The amount and nature of the assets owned by the decedent dictate which type is appropriate.  Chapter 733 of the Florida Statutes provides the framework for the administration.

Formal Administration.   If the decedent owned assets in his or her sole name in excess of $75,000 (not including the decedent’s homestead property), a formal administration is usually required.  A formal administration involves filing an initial Petition for Administration with the probate court identifying the decedent, listing the decedent’s assets, and requesting that a personal representative be appointed to administer the estate.  Notice of the proceedings must be given to the decedent’s beneficiaries and to the decedent’s creditors and an inventory of the estate must be filed with the probate court.  A formal administration typically takes from 6 to 12 months to complete.  However, formal administrations that involve more complex issues such as the probate of real estate, tax issues, or litigation, may continue for a much longer period of time.  Under Florida law, a Personal Representative must be represented by legal counsel throughout the formal administration.

Summary Administration.  For a decedent with assets in his or her sole name worth less than $75,000 (not including the decedent’s homestead), a less extensive administration, referred to a summary administration, may be appropriate.  A summary administration may also be used if the decedent owned only homestead property at this time of his or her death.  A Petition for Summary Administration, along with a proposed order specifying who is to receive estate assets and which creditors should be paid and in what amount, is submitted to the probate court.  Once the order is entered, the summary administration is complete.  Some courts also require that a notice to estate creditors be published in a newspaper within the summary administration.  Summary administrations can typically be completed in a matter of months depending upon the probate court’s caseload.

What does NOT trigger the need for Probate?

Control and Disposition of the Decedent’s Remains.  Unless the decedent’s Last Will and Testament provides to the contrary, a surviving spouse or next of kin (such as the decedent’s children) can legally control the disposition of the decedent’s remains without initiating a probate proceeding.  If the surviving spouse and next of kin are in disagreement as to the disposal, Section 497.005(39), Florida Statutes, provides that the surviving spouse has the ultimate decisions making authority regarding the remains unless the surviving spouse has been arrested for committing an act of domestic violence against the decedent that resulted in or contributed to the death.

Disposition Without Administration.  For smaller estates, no administration may be required at all.  For example, if the decedent owned only certain exempt property and nonexempt personal property not exceeding the sum of the amount of funeral expenses and the decedent’s reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, then a disposition without administration may be appropriate.  Pursuant to Section 735.301, Florida Statutes, the decedent’s property may be transferred if an interested party sends an affidavit or letter to the court requesting the payment or transfer of the decedent’s property to persons entitled to that property. Once the court receives the informal request, the court may authorize the payment, transfer, or disposition of the decedent’s personal property in writing without the need for a formal administration.

Decedent Owned Automobile in Sole Name.  If the decedent owned an automobile in his or her sole name, that automobile transfers automatically as an operation of law pursuant to Section 319.28, Florida Statutes, without a probate.  If the decedent had a Last Will, the Will should be presented, along with a death certificate and an affidavit that the estate has sufficient assets to pay creditors or that it is not indebted, to the Department of Motor Vehicles to show who has the legal right to take title to the automobile.  If the decedent died intestate, an affidavit stating that the estate is not indebted and that the surviving spouse (if any) and heirs of the estate have agreed who should take title to the automobile is submitted to the Department to transfer the title.

Jointly Owned Property.  If the decedent owned a parcel of real estate as a joint tenant with rights of survivorship, the parcel will pass automatically to the surviving owner or owners when the decedent dies.  No administration of the real property is required.  There is also no need to do a new deed for the real property.  A death certificate without the cause of death will need to be recorded in the public records in the county where the real property is located.  Generally, no probate administration is required for other types of property owned jointly by the decedent and another party, including bank accounts, investment accounts, and automobiles.  A determination must be made as to whether such accounts were owned by the parties with survivorship rights or whether a party was placed on the account simply for convenience, without survivorship rights.  Under Florida law, there is a presumption that the decedent intended for any joint assets to pass to the surviving joint account holder unless the presumption is rebutted in the decedent’s Last Will and Testament.

Tax Refund.  If the decedent is entitled to a tax refund from the Internal Revenue Service not in excess of $2,500, Section 735.302, Florida Statutes, states that the refund may be paid directly to the decedent’s surviving spouse, or if there is no spouse, to his or her surviving children over the age of 14.

Assets Payable to a Named Beneficiary.  Assets that are payable to a named beneficiary such as life insurance policies, retirement accounts, and some bank and investment accounts, pass directly to the named beneficiary and need not be probated.  These would include POD (payable on death) accounts, TOD (transfer on death) accounts, and ITF (in trust for) accounts.

Veterans’ Survivor Benefits.  Most benefits payable to the survivors of a decedent are paid directly to those survivors and are not probated.  Information regarding veterans’ benefits can be obtained from the United States Department of Veterans Affairs, Benefits Information and Assistance Office.

Social Security Benefits and Claims.  Social security benefits are payable directly to the decedent’s spouse or dependent.  Information on these benefits can be obtained from the Social Security Administration, which publishes a Social Security Handbook that details the programs available to survivors.