Is Probate Necessary?

Florida probate law is governed by Chapters 731 through 735 of the Florida Statutes. Generally, probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses of administration, and distributing assets to beneficiaries. Probate is necessary to pass ownership of the decedent’s assets to the decedent’s beneficiaries. If the decedent did not leave a valid will, it is said that they died “intestate” and probate is necessary to pass ownership of the decedent’s assets to those persons who are to receive those assets under law of the State of Florida. If the decedent left a valid will, it is said that they died “testate” and unless the will is admitted to probate in the Court, it will be ineffective to pass title to the decedent’s beneficiaries. Also, probate is required to finalize the decedent’s financial affairs after his or her death, including payments due to the decedent’s creditors.

Life insurance policies, annuity contracts, individual retirement accounts that are payable to a specific beneficiary and not the decedent’s estate, real property held as tenants by the entirety, to name a few, are not probate assets. The probate court will look to administer the assets of the decedent that were owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at his or her death.

By Gina Silvestri, Esq.

Do I need a written lease?

The answer depends on the length of the lease agreement. Rental agreements may be either written or oral. The Statute of Frauds applies to a lease agreement that, according to its terms, cannot be performed and completed within one year. This means that if the actual terms of the agreement make it impossible to be performed within one year, e.g. a two (2) year rental agreement, it must be in writing to be enforceable. Though as a matter of precaution to both landlord and tenants, most rental agreements are written because oral agreements can be subject to misunderstandings, open to interpretation and are generally difficult to prove the actual terms. Though the written agreement need not be formal. It can be a simple letter stating the rights and obligations of both the landlord and tenant and must be signed at the very least by the tenant for the landlord to enforce its rights against the tenant.

If the lease is an oral lease and performance of the lease can be completed within one year, Section 83.46(2), F. S. applies as to the duration of the tenancy. The duration will be determined by the periods by which rent is payable (e.g. week-to-week, month-to-month, etc.) and all other terms are interpreted under Chapter 83 of the Florida Statutes.

Though, it is important to note that Florida law requires that notices to and from a landlord must be in writing, even if the rental agreement is oral. If the proper notice requirements are not met as proscribed by Chapter 83 of the Florida Statutes, a party’s rights and/or defenses may be waived under the law.

By Gina Silvestri, Esq.