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Florida Probate Laws You Need to Know


Probate in Florida refers to the legal process through which a deceased person’s assets are distributed and their debts are settled under the supervision of the court. Understanding this process is key whether you’re completing your own estate planning or trying to understand how you’ll receive assets as a beneficiary. Many may want to avoid probate, so knowing how it works and the laws in the state of Florida can help you do just that. You may also want to talk to an experienced financial advisor who can help you avoid probate with your assets as well.

How Probate Works in Florida

The probate process in Florida is tailored to address the concerns of what happens to your assets when you die. Probate helps to guide the distribution of an individual’s estate in an orderly manner, providing a legal structure to this process. Whether the deceased has left a will or not, Florida’s probate system steps in to oversee the transfer of assets, adhering to the directions specified in the will or, in its absence, following state intestacy laws.

Probate begins when a will is filed with the local circuit court, and a personal representative — often named in the will — is appointed to manage the decedent’s estate. This role, also known as an executor in other regions, is not to be taken lightly. The personal representative is tasked with identifying and cataloging the deceased’s assets, settling any debts and taxes and distributing what remains to the rightful heirs. The entire process can be time-consuming and costly.

Depending on the estate’s value and the time since the decedent’s passing, the court may authorize a formal administration — a comprehensive, court-supervised process — or a summary administration, which is a faster route suitable for estates under $75,000 or those where the decedent has been deceased for more than two years.

Property and Assets That Go Through Probate in Florida

A senior couple meeting with a financial advisor to discuss their estate plan.

Probate assets in Florida cover a range of items and properties that the deceased solely owned at the time of their death. These include real estate titled solely in the decedent’s name without any provision for automatic succession of ownership, personal items like cars, jewelry or art of substantial value and financial accounts that do not have a designated beneficiary. The Florida Statutes Section 733.202 provides a legal framework outlining the probate process and determining asset classification.

Certain assets are structured specifically to circumvent the probate process, allowing beneficiaries quicker access to their inheritance. For instance, assets held in a trust are not subject to probate and can be transferred promptly. Similarly, assets with a transfer-on-death (TOD) designation, including certain brokerage accounts, can be passed directly to the named individual without the need for probate. Additionally, jointly owned properties with rights of survivorship are exempt from probate, as the surviving owner automatically becomes the sole owner.

The Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes, provides the legal underpinnings for estate planning professionals to navigate the evolving landscape of estate law. Individuals need to understand these assets and the laws that govern them to plan their estates effectively and to simplify the inheritance process for their heirs. Given the complexity of estate planning, consulting with an estate planning attorney or financial advisor is recommended to ensure a thorough understanding and strategic management of one’s assets.

What Makes a Valid Will in Florida

In the state of Florida, the importance of estate planning is amplified by the state’s distinctive legal statutes that govern the creation and execution of wills. A valid will serves as the cornerstone of an effective estate plan, providing clarity and direction for the distribution of assets, thus avoiding potential disputes and ensuring that the desires of the deceased are honored. As such, understanding the intricacies of Florida law and its requirements for a valid will is of paramount importance for residents.

Imagine a scenario where a Florida resident passes away without a valid will. The individual’s assets could end up being distributed in a way that is completely contrary to their wishes, causing unnecessary distress to their loved ones. To underscore the central role a valid will plays in estate planning, consider the following criteria that must be met for a will to be recognized as valid in Florida:

  1. The individual making the will, known as the testator, must be at least 18 years of age or an emancipated minor, ensuring that the person has the legal capacity to make such a document.
  2. Mental capacity is equally crucial; the testator must be of sound mind, which means they comprehend the document, the nature and extent of their assets, and the planned distribution of those assets.
  3. The will must be written and signed by the testator, or by another individual under their direction and in their presence.
  4. It must be witnessed by at least two individuals who are present simultaneously, sign the will in the presence of the testator, and do so in the presence of each other.

Adherence to Florida’s specific legal requirements when drafting a will is crucial to its validity and enforceability. If a will does not comply with these statutes, the default intestacy laws of Florida come into play to determine asset distribution, which can lead to outcomes vastly different from the testator’s intentions.

Bottom Line

Two women researching probate laws in Florida.

The probate process in Florida administers a decedent’s estate, ensures rightful asset distribution either by honoring the wishes expressed in a will or adhering to intestacy laws. For those with assets in Florida, it’s important to understand which assets will go through probate and the strategies available to avoid the process, thus preserving estate value and reducing the potential burden on heirs.

Tips for Estate Planning

  • A financial advisor can help you avoid probate by helping you create a personalized estate plan for your needs. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • You can evaluate your current estate plan by reviewing an effective estate planning checklist. It can be a great way to get your estate plan started right.

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