Probate

Probate

Probate is a court-supervised proceeding in which the assets of a person who recently died, known as the decedent, are distributed to named beneficiaries or heirs at law. If the decedent left a valid Will, the Probate court will admit the Will (according to procedures) to Probate and distribute ownership of Probate assets to the beneficiaries named in your Will. If the decedent had no Will, distribution of ownership of probate assets will pass to your heirs at law according to “intestate succession” laws. 

Probate administration applies only to Probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be Probate assets may include:

  • A bank account or investment account in the sole name of a decedent is a Probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a Probate asset.
  • A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a Probate asset. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a Probate asset.
  • Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is a Probate asset (unless it is homestead property). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a Probate asset.  Also, property owned by spouses as tenants by the entirety is not a Probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.

There are two types of Probate administrations under Florida law: Formal Administration and Summary Administration. The type of administration that is right for a particular client depends on several factors. There is also a non-court-supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances.

While the duration of Probate varies from case to case, in general, the process takes six to twelve months from beginning to end. However, it is not uncommon for Probate to become prolonged due to other obstacles. As such, the Probate process can take anywhere from months to years to complete. Unfortunately, while a Probate proceeding is pending heirs are unable to gain access to their inheritance until the proceedings conclude.