Probate is the process where a court oversees the distribution of an estate after the death of the descendant. Most estates are designed in an attempt to minimize or eliminate the need for probate as it can be a lengthy, complex, and expensive process. However, when probate is necessary, it is imperative to have the probate handled by an experienced Orlando Probate Attorney. In Florida, there are typically two types of probate administration; summary administration and formal probate administration. It is important to discuss with your probate attorney what administration is proper given the value, complexity, and assets of the estate. Although many people believe that the probate process of an estate should be straight forward, often the issues that arise during the probate process make it more complex.

What is Probate?

Probate is simply the process where the Court oversees the administration of an estate where the assets are identified and then distributed to creditors and beneficiaries.

Do I need to do a Probate?

Typically, if there are assets left in the name of the family member or loved one who has recently passed away, a probate will be necessary. If all assets are held jointly or have been transferred, there is typically no need for probate. It would be wise to consult with a probate attorney to make a more informed decision as to whether a probate administration is necessary.

What is the purpose of Probate?

The probate process values the assets and liabilities of a loved one or family member who has passed away and determines how the liabilities are paid and the assets are distributed. As part of the probate process, the beneficiaries are determined, and the court legally transfers the assets to those beneficiaries after satisfying the liabilities of the estate.

Why is Probate necessary?

Probate is legally necessary to transfer property from the decedent to the beneficiaries.

What are Probate assets?

Probate assets are the assets owned by the decedent at the time of the decedent’s death. However, assets that contain a provision for automatic succession of ownership at death are not included in the probate estate. For example, real estate held as joint tenants with the right of survivorship or as tenants by entirety (usually used for married couples who own real estate) would not be a part of the probate estate. Additionally, assets held in a revocable trust would not be included in the probate process.

How do I access a safe deposit box?

Typically, you need a court order authorizing the inspection of the safe deposit box. In the alternative, the letters of administration may allow you to access the safe deposit box.

What are letters of administration?

Letters of administration are court orders, which are issued as part of a formal probate administration. Letters of administration authorize the personal representative of the estate to begin administering the estate.

Will I have to attend court in Florida for the probate?

Typically, as long as the estate is uncontested, you will not need to attend court.

The Will says I am Personal Representative. Do I need probate?

Yes, you will still need probate if there are assets that need to be transferred.

What types of assets need to be probated?

Assets that are owned solely in the name of the person who has passed away. For example, real estate or a car title that is held in that person’s name alone. Additionally, if the person who has passed away owns a share or owns property as tenants in common, the property may need to go through probate. Typically, any asset that does not transfer upon death or name a beneficiary will need to go through probate.

What types of assets do not need to be probated?

Any asset that transfers upon death or names a beneficiary will most likely not need to be probated. For example, retirement accounts or bank accounts that name a beneficiary do not need to be probated. Life insurance proceeds, which name a beneficiary (unless the beneficiary listed is the estate) will not need to be probated. Accounts that are payable upon death, such as payable-on-death bank account, securities that are transferred on death, or savings bonds that are payable upon death will not need to go through probate. Finally, any property held in a living trust or held jointly as tenants by the entirety or joint tenants with a right of survivorship will not need to go through probate.

Am I able to sell assets of the estate during the probate process?

If you are named as the Personal Representative of the Estate, you are in charge of managing the property of the deceased. In some cases, this may mean selling property. However, you want to check with an experienced Probate attorney prior to selling any assets of the estate to avoid subjecting yourself to unwanted legal ramifications.