Probate is the legal process of settling the estate of a deceased person and, more specifically, distributing the decedent's probate property to the rightful heirs. The probate process generally involves assets in the decedent’s probate estate, which includes only those assets in the decedent’s own, individual name. The probate process does not generally include assets that are jointly held with rights of survivorship and other assets distributed by contract such as life insurance, IRAs and 401Ks. These are distributed to the survivor or to the designated beneficiary without the estate’s involvement.

An example of probate and non-probate assets is as follows:

    Mother, Mary, passes away owning the following assets:

  • Stocks certificates titled in her name
  • Rental property titled in her own name
  • Bank account jointly owned with her daughter
  • IRA with beneficiary designation to her daughter

In our example, the probate process only includes the rental property and the stocks because these are the only assets that are owned by the “probate estate.” This means that the heirs must hire an attorney to assist only with these two assets. The bank account would now be owned by the daughter as the survivor and the IRA is distributed directly to the daughter as well, avoiding the probate process and, ultimately, avoiding attorneys.

The probate court has jurisdiction only over the decedent's probate estate. The probate court’s job is to make sure the probate estate is settled in accordance with Florida law. The probate process generally has the following goals:

  1. Make sure the decedent’s creditors have the opportunity to be paid;
  2. Make sure the decedent’s taxes are paid;
  3. Make sure the probate assets are correctly distributed to the beneficiaries; and
  4. Make sure the decedent’s affairs are properly settled.

Most people would agree that the probate process itself has good goals. Most believe, for instance, that a decedent’s creditors should get paid before their heirs receive their money.

As the probate process is a legal process, an attorney will need to be hired to help go to court to properly follow the correct procedure.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney