Serving Lake County, Sumter County, The Villages, and the greater central Florida community
The term ‘Probate’ refers to the court-supervised process which is used to legally identify, gather and distribute the assets of an individual, whom has ‘passed away,’ to their creditors and/or surviving heirs and beneficiaries. Pursuant to Florida law, every asset owned by an individual, at the time of their death, immediately becomes a part of their ‘estate’. The ‘estate’ is created instantaneously upon the death of the individual and is the pool from which assets will be distributed or used to pay off the decedent’s creditors/ administrative expenses and appropriate taxes.
The probate process is generally an administrative process and, often times, the probate of an estate will not require contested court hearings or major litigation before a Probate Judge. However, there are issues that can greatly complicate and slow down the distribution of assets. For instance, if a Last Will and Testament is contested by family members, or if the individual died without an estate plan, a more thorough probate process should be expected.
There are two primary forms of the ‘probate’ process in the State of Florida.
(1) Formal Administration
Formal Administration is required when a decedent ‘passed’ away within two (2) years and their estate exceeds $75,000.00. The Formal Administration process is governed by Chapter 733, Florida Statutes.
(2) Summary Administration
Summary Administration is intended to be used for small estates and is governed by Chapter 735, Florida Statutes.
What belongings do not have to be probated?
Not all assets owned by an individual at the time of their ‘passing’ need to go through the probate process. Florida law allows assets held in a ‘joint tenancy with a survivorship interest’ or, which have a designated beneficiary (pay on death account, designated beneficiary on life insurance), to be exempt from the probate process.
Does my house have to be probated?
There is an important distinction to consider when analyzing whether a home is required to go through the probate process. Such analysis must begin by first asking the following questions; (1) was the subject property the deceased individual’s full-time and permanent residence (homestead) or was it a secondary home and (2) was the home owned solely by the decedent or was it jointly titled?
Generally, without the proper foresight and estate planning, a secondary home (like all other personal property) must go through the probate process prior to being distributed to heirs and beneficiaries. However, the decedent’s ability to leave a home to their intended beneficiaries can also be dependent on the decedent's ownership interest at the time of ‘passing’ since a decedent may only be transfer the interest they held at the time of the transference.
There are numerous reasons why an individual would want a house, or other non-homestead real property, to stay outside of the probate process. This can be accomplished through the implementation of the proper estate planning strategy and tools. The subject individual could utilize a ‘enhanced life estate deed’ to retain a life-interest in the property while passing the future interest in the property to a third-party. Once an enhanced life estate deed is fully executed, and recorded properly, such home/real property is no longer subject to the probate process.
A homestead is treated differently than all other personal assets, including secondary homes, by virtue of special protections found within the Florida Constitution. The relevant homestead provisions can be found within Article X, Section 4 of Florida’s Constitution. According to such, “The homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner’s spouse if there is no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may be deed transfer the title to an estate by the entirely with the spouse." Pursuant to Florida Statutes, a homestead shall not be subject to devise if the owner is survived by a spouse or a minor child…except the homestead may be devised to the owner’s spouse if there are no minor children.
If you have legal questions regarding the Florida Probate Code, or if you need assistance/representation in any particular matter, please do not hesitate to contact Lanius Law Firm, P.A. so we may offer you our assistance.
LANIUS LAW FIRM, P.A.
510 County Rd. 466 Suite 207-L
Lady Lake, FL 32159