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What Makes an Asset Go Through Probate Upon Death?

Most people know that when they die, they want their assets to avoid the probate process. Most people do not even know what probate is, but they know they want to avoid it. But what is probate and, even more important, when do assets go through probate in Florida?

First, probate is the court process to properly settle your estate upon your death. The probate process was created to make sure the decedent's taxes are paid, legally enforceable bills are paid, and assets go to the right people (i.e., their heirs).  Their are four types of probate in Florida, each applying in very specific situations.  The four types are:

  1. Formal Administration:  A typical "probate" process where the court appoints the personal representative (i.e., "executor") to settle the estate.
  2. Summary Administration: A shorter and more simple form of probate when assets are less than $75,000 and all of the decedent's bills are paid (among other matters).
  3. Disposition without Administration:  Not really a probate, per se, but a simple way for a family member or other person to get paid for last funeral costs.
  4. Ancillary Administration: When the decedent was not a resident of Florida but owned real property here.

We have more on the types of Florida probates here.

Let's get back to the question posted - what makes an asset go through probate in the first place?  Probate assets are assets that were either:

  • In the decedent's own, individual name upon their death; or
  • Did not have a beneficiary designation upon death.

Assets in the decedent's own, individual name would be just about anything - bank accounts, stocks, bonds, brokerage accounts, real property (i.e., land), and more. When someone dies with these assets, no matter what the value, the family/heirs will need to look to one of the processes above in order to take control of the asset.

If someone had a life insurance policy, IRA, 401k, etc., that did not have a beneficiary designation, that asset would also be subject to the probate process.

Example of Probate Assets:

Mom dies with a bank account and her homestead property, both in her individual, individual name. The family/heirs will need to see a probate attorney to gain control of the bank account and to sell the home.

Where are Probate Assets Distributed?

Probate assets are distributed according to the decedent's last will and testament, if they have one, and if not, then according to the laws of intestacy.

What Should I do to Avoid Probate?

There are a number of ways to avoid probate with your own estate plan. If you want to learn more about how to avoid probate, please download a copy of my book, The Top 20 Rules to Protect Your Florida Estate.

If you want to learn more about probate:

 

 

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