Probate is the term for the legal court process of reviewing the will of someone who has passed away to confirm that it is valid and authentic. Probate also refers to the general administration of the will; or when there is no will, the administration of their estate.
Probate is also called estate administration, which describes the court process to transfer the assets owned by the deceased person to others. If the decedent has a will, their possessions are distributed to the beneficiaries identified in that document.
Do All Wills Have to go Through Probate in Florida?
Probate is required in most cases in Clearwater, Florida when someone passes away. There are exceptions with the estate when the assets were placed in a living trust, or all assets were transferred to named beneficiaries. When the decedent is the sole owner of the assets or no legal provisions are in place to transfer the assets to a co-owner upon their death, the estate must go through probate.
To avoid having an estate go through probate, a living trust can be set up with all of the assets placed in the name of the trust. The individual setting up the trust has the ability to name beneficiaries in the living trust who receive the assets of the living trust upon that person’s death. However, any assets that are not identified in the living trust must go through probate after the person’s death.
Another option to avoid probate is to name a beneficiary on insurance policies or retirement accounts. The person named as a beneficiary receives the assets after the owner of the policies or accounts dies.
What is the Probate Process?
Early in the probate process, the court appoints a personal representative to administer the estate. If the decedent has a will, they designate someone to take on the role of personal representative. The person may be a close relative, trusted friend, or even a bank or trust company.
There are three situations where the court may appoint a personal representative to administer the estate:
- There is no will.
- No one is identified in the will to be the personal representative.
- The person named in the will to be the personal representative is unable or unwilling to serve in that capacity.
The individual in possession of the will first files the will with the clerk of the court. The person who submits the will to the court is not necessarily the personal representative. The probate case is opened when a Petition for Administration and the associated fees are filed with the court.
There are two probate processes in the Clearwater, Florida. The summary administration process is available for some estates and may be allowed when the value of non-exempt property is less than $75,000, or the individual has been dead for more than two years. The process is streamlined with fewer steps than the formal administration.
Formal administration probate is the most commonly used method of administering a larger estate in Florida. A probate judge supervises the administration of the estate through three phases: opening the estate, administering the estate, and closing the estate.