David M. Andrews
Attorney at Law
125 Nix Boat Yard Road, Saint Augustine, Florida 32084

PROBATE FOR FLORIDA RESIDENT

The purpose of probate is to transfer individually owned assets which are not "exempt" to heirs and beneficiaries after assuring that all taxes and creditors are paid.

Individually owned assets are those which are only in the name of the decedent and do not include the following assets:

1. Assets held in joint name with a spouse.
2. Assets held as joint tenants with right of survivorship (JTWROS) with anyone.
NOTE: assets held as "tenants in common" are individually held assets.
3. Life insurance proceeds payable to anyone other than the decedent's estate.
4. Assets held "in trust for" any person. (Totten Trust)
5. Assets held in a trust.
6. Assets held in a brokerage account which is "payable on death" (POD) to any individual.
7. Any IRA, pension plan, or qualified plan which names a surviving beneficiary.
8. Exempt assets (Florida residents) including the homestead and certain tangible personal property.

CRITICAL INFORMATION

A. Date of death.
B. Place of domicile.
C. Whether or not there is a will.
D. Assets individually owned and their values.
E. Subject to Federal Estate Taxes?

FORMS OF PROBATE

A. FULL ADMINISTRATION requires the appointment of a personal representative, publication against creditors, notification of heirs and creditors, accounting to the court, distribution of remainder to heirs or beneficiaries.

B. SUMMARY ADMINISTRATION can be utilized if either of the following applies:

1. If an individual who died on or after 1/1/2002 has less than $75,000.00 in assets not including exempt assets and there are no debts or creditors are provided for ($25,000.00 if date of death is prior to 1/1/2002) then a summary administration can be used to transfer assets.

2. If an individual has been deceased for over two years a summary administration can be used for any amount of assets. There is no appointment of a personal representative or publication against creditors.

C. DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION is used to transfer exempt, tangible personal property, typically automobiles. Heirs or beneficiaries go to the Courthouse to fill out the paperwork. They generally need to take the will, if there is one, death certificate, and car title(s).

D. See ANCILLARY ADMINISTRATION IN FLORIDA for probate for a decedent who owned real property in Florida but is not a Florida resident.

 

CAVEAT: The above is the author's summary. None of these matters should be undertaken without advice and counsel of an experienced attorney licensed to practice law in the State of Florida.