What to Know About Probate

Clients almost always wish to avoid probate when we discuss estate planning, but many do not really know what probate entails.  Simply put, probate is the process where a judge signs off on the transfer of a decedent’s assets to the beneficiaries. Therefore, when someone passes away leaving behind an asset which is titled, (such as an account at any financial institution, real property, insurance, etc.), and there is no joint owner or beneficiary, that asset can only be transferred, or given to the beneficiary, in probate.

Although there are different types of probate administration, [disposition of personal property, summary administration, formal administration], probate is still required.  People often think probate can be avoided if the assets are below a certain amount. Although it is true that a summary probate administration may be appropriate, the probate is still necessary.  The way the asset is titled determines whether probate is necessary, not the size of the asset.

Additionally, having a last will and testament does not avoid probate.  A last will and testament, if properly executed, will be admitted to court by the judge.   The last will and testament states who is appointed personal representative and lists the beneficiaries.  It acts as a guide to the judge for the probate process, but it does not eliminate the need for a probate.  Without a will, the judge looks to the Florida law on intestacy, which lists one’s beneficiaries based on a family hierarchy.

The reason people seek to avoid probate is because it can be a lengthy and expensive process.  The court’s filing fee to open an estate is currently $400, plus there are additional costs through the administration and attorney’s fees.  There are several steps throughout a formal probate administration.

Florida can be a long and complex issue to go through for your beneficiaries, Elaine McGinnis, P.A. has nearly 15 years of experience in estate law. Contact our Tampa, FL estate planner today for your consultation.