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.