The Probate Process

Probate is the formal legal process that gives recognition to a Will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. 

In planning your estate, more important than minimizing probate is minimizing the real issues that can make probate difficult, such as lawsuits by heirs. Many states have simplified or streamlined their probate processes over the years. However, Florida is a state that requires you to use an attorney for a probate proceeding. A properly drafted Will in many states can eliminate some of the steps otherwise required in the probate proceeding.

A deceased person with a will is known as a testator. When a testator dies, the executor is responsible for initiating the probate process. The executor is responsible for filling the Will with the probate court. The court officially appoints the executor named in the will, which gives the executor the legal power to act on behalf of the deceased. Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. 

Probate for real estate may need to be extended to any county in which the real estate is located.The executor is also responsible for filing the final, personal income tax returns on behalf of the deceased. Any estate taxes that are pending can also come due within one year from the date of death.

Probating an estate without a will is typically costlier than probating one with a valid will. Additionally, the proceedings of a probate court are publicly recorded. Avoiding probate would ensure that all settlements are done privately. Typically, if a deceased person’s debts exceed their assets, probate is not necessarily initiated and alternative actions may be taken.

Many types of property routinely pass outside of the probate process, even without establishing a living trust. These are called nonprobate assets. Here are six (6) common examples of nonprobate assets.

• Property: most personal property will become probate assets, however you can convert them to nonprobate assets by establishing a trust. 

• Bank accounts: A bank account, such as a checking or savings account, can also be a non-probate asset. This largely depends on the policies of the financial institution that holds the account and if you selected a payable upon death beneficiary for that account.

• Retirement Benefits: Retirement benefits and savings accounts also typically require a beneficiary designation, thus making it a non-probate asset. 

• Life Insurance Policies: By purchasing a life insurance policy, you are ensuring that your loved ones will receive financial proceeds when you pass away by selecting your beneficiaries directly with the insurance carrier.

• Any other assets that are owned jointly with others: Assets that are co-owned with rights of survivorship by two or more persons do not usually pass through probate. This is because if one of the owners passes away, their share of ownership in that asset will be redistributed proportionately amongst the remaining owners.

• Any other assets that have post-death designation in place: There are also assets that can have a post-death designation in place, such as the right of survivorship, or transferable- or payable-on-death.

The living trust is often used as a vehicle that allows you to avoid probate upon your death. A Revocable trust is a part of estate planning that manages the assets of the grantor as the owner ages and plans for the grantor’s beneficiaries upon the grantor’s passing. Property that passes at death through a revocable living trust must be transferred to the trust prior to the grantor passing to avoid the probate process. Once property is properly titled to the trust, it will get administered by a trustee, then transferred from the trust to the beneficiaries outside of the probate process. 

For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.