When Probate is Required in Florida

What is Probate Court?

The Florida probate court is responsible for overseeing the management of assets and affairs for people who cannot do so themselves. Much of the probate court’s time is spent overseeing the administration of estates after people have died with or without a will. This includes:

Identification of a deceased person (decedent)’s assets

Gathering and liquidating those assets

Paying the decedent’s debts

Distributing the decedent’s assets to his or her beneficiaries.

However, the probate court also oversees guardianships and conservatorships. These cases involve incapacitated individuals who are physically or mentally incapable of handling their own healthcare choices or financial affairs.

If you have found yourself responsible for a loved one’s affairs, or are trying to prepare your own estate plan, you likely are considering a trip to the Florida probate court. Knowing when probate is required in Florida, and what you can do ahead of time to avoid it, can keep you and your family members from hassles once you can no longer manage your own affairs.

Is Probate Required if There is No Will?

Probate is about transferring ownership of a deceased person’s assets to their beneficiaries. It is required anytime a person dies with assets in his or her name only, whether or not the decedent had put together a Will directing how those assets should be distributed. Where there is a valid estate plan in place, the court oversees the process of “probating the Will” until the estate’s personal representative has paid all the estate’s expenses and distributed the assets to the beneficiaries according to the terms of the Will.

Where there is no Will, the probate court also has the obligation to identify the appropriate heirs through intestate succession. Once the heirs are identified, the distribution of the estate is essentially the same as where there is a Will. The only difference is that a Florida statute, instead of a Will, controls who receives the inheritance, and various steps in administration can be less efficient because there is no Will to specify exactly how they are to be handled.

How Does the Probate of a Will Work?

When you or your loved one files a petition to probate a Will, it starts a probate process called estate administration. Some smaller estates can be probated through a summary administration. This allows a Will to be probated and the assets distributed after certain paperwork is completed and notices have been sent to creditors and heirs.

Most estates in the Florida probate courts go through a longer, more complicated formal administration. This process includes:

Appointing a personal representative (formerly called executor)

Issuing Letters of Administration

Notifying creditors

Taking possession of the estate’s assets

Inventorying the decedent’s assets and setting their value

Collecting on debts owed to the deceased

Objecting to or paying the creditors whose claims survive the decedent’s death

Paying taxes and the decedent’s final expenses

Distributing the assets to correct beneficiaries

What Can You Do to Avoid Probate Court?

If this probate process sounds like something you want to avoid for your loved ones after your death, there are certain steps you can take to reduce or avoid probate court. It is true that the formal administration process can take months or even more than a year after a decedent’s death. It is also a public process, completed in open court. That means many families do what they can to avoid probate court.

Remember, probate only applies to assets or interests that the decedent held solely in their own name at the time of their death. In many probate estates, this could include:

The home they lived in

Vehicles

Furniture, heirlooms, and other personal property

Bank accounts or investment accounts without proper beneficiary language

Retirement accounts, insurance policies, and annuities contracts payable to the decedent’s estate

Other property held only in their own name

However, there are a variety of ways to exclude those assets from the probate estate and avoid the probate court’s supervision, such as:

Creating a revocable trust and transferring assets into that trust

Transferring finances into an account held jointly with rights of survivorship

Designating beneficiaries on insurance policies, retirement accounts, and annuities

Transferring property to beneficiaries while still alive

Holding real estate assets as joint tenants with rights of survivorship or as “tenants by the entirety” between spouses

Most of these options allow the assets to pass to the survivors automatically on the decedent’s death without needing to go through probate. However, there may be legal limits or practical considerations that should be addressed. That is why it is wise to review your entire estate plan with an experienced estate planning attorney before you start transferring assets or putting accounts in your family members’ names. Using these strategies and knowing when probate is required, individuals and families can make their estates easier to probate, and in some cases avoid it entirely.

Our Attorneys Can Help You Determine When Probate is Required for Your Case

At Harrison Estate Law, P.A., our experienced estate and probate team can help you review your loved one’s estate, identify probate assets, and select and complete the right kind of probate administration. Our estate planning attorneys can also help you plan ahead to protect your assets and reduce the probate process. Contact us here or call 352-306-3579 to get help today.

Estate and Probate Rights of Unmarried Partners

Florida probate law contains several protections for married couples, including laws to prevent a spouse from losing their home or property after their spouse’s death, built in assumptions about spouses’ authority to make decisions on their husband or wife’s behalf, and their shared responsibility to care for children in common. Essentially, a married couple is treated as a single entity under the law.

However, unmarried partners don’t have access to these same protections. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.

There are many reasons why you and your partner may choose to cohabitate, rather than get married:

One or both partners may still be legally married to a former spouse

Marriage may terminate an existing spousal support award

A would-be spouse’s income may exclude a partner from receiving means-tested state benefits, like Social Security benefits or Medicaid

You may have a religious or philosophical objection to marriage

Your family may object to your choice of partner

Marrying may cut you off from receiving benefits from a Family Incentive Trust

Living together is growing increasingly socially acceptable. That means more and more Florida families are being built without the foundation of a legal marriage. To make up for the lack of protections that come with the word “spouse,” unmarried couples should make estate planning a priority.

Many Florida families don’t take the time to set out their wishes for their final care, or what should happen to their property when they die. They trust that doctors and the courts will defer to their partner if something happens to them. However, when unmarried partners take this same relaxed approach to estate planning it can create delays and unintended consequences for the couple and any children they may have in common.

Estate Planning Tips for Unmarried Couples

The single biggest estate planning tip for unmarried couples and partners is to start as soon as possible. Once you move in together it may be time to start considering whether to include your partner in your estate and end-of-life plan. Here are some considerations for unmarried couples’ estate plans.

Jointly Titled Property Gives Automatic Access to Funds Without Probate

One of the easiest forms of estate planning for unmarried partners involves how they purchase and title property in the first place. Homes, cars, and bank accounts can all be held jointly with another person, regardless of whether that person is a spouse. When one title owner dies, jointly held property automatically reverts to the other title owners. There are many reasons why partners may choose not to combine their assets. However, if you are trying to protect your partner in the event of your death, one quick and easy way to do so is to add their name to the title of your home or bank account.

Wills for Unmarried Partners Protects Grieving Survivors from Eviction

Unmarried partners do not gain a surviving spouse’s elective share in their partners’ assets after their death. These elective shares are designed to make sure that a widow or widower isn’t displaced or cut off from all their assets during their grief. However, unmarried partners don’t have the same protections. Instead, they will be dependent on the language in their late partner’s estate plan. If you want your unmarried spouse to keep possession of your home, furniture, or other property when you die, you will need to write a Will to give that property to your partner directly. Otherwise, it could pass to your parents, siblings, or even cousins, leaving your live-in partner without a place to live.

Estate Planning Gives Unmarried Couples Power to Make Decisions And Pay Bills

It is important to remember that estate planning isn’t just about what happens to your property after death. It also addresses your final wishes regarding your own healthcare, expenses, and living arrangements. Many unmarried people trust their partners with these difficult decisions. However, if you become incapacitated without an estate plan in place, the Florida probate court is more likely to appoint a blood relative or private company to act as your legal guardian.

Fortunately, the courts must generally defer to your guardian designation. Probate judges will also look for less restrictive alternatives, such as powers of attorney or patient advocate designations. If you have prepared these documents naming your unmarried partner as your intended decision maker, the court will generally honor those requests and appoint your unmarried partner instead.

HIPAA Releases Keep Partners Informed

Relatedly, federal privacy laws prevent doctors and hospitals from talking about a patient’s condition with their unmarried partners. Unless you have signed a HIPAA privacy waiver permitting your partner to receive your medical information, they may not be informed about your condition, or the options available for your treatment.

Family Planning Documents for Unmarried Parents

Similarly, if you have children (or pets) when you pass away, the Florida courts may overlook your unmarried spouse as a potential guardian or caregiver. No amount of family planning will replace a family court custody order placing a child with a parent. However, if your child does not have a second legal parent – such as in cases of adoption or where the child was conceived to unmarried parents – you may need to complete a guardianship designation indicating you want your children placed with your partner if you died.

Get Help with Estate Planning for Unmarried Couples

Estate planning is essential to protect unmarried couples from losing their connection to one another, and their shared property when they become incapacitated or die. At Harrison Estate Law, P.A., our experienced estate and probate team can help you create an estate plan that will protect you, your partner, and your children. We will help make sure you have all the documents in place so that doctors, family members, and the Florida courts give your life partner the respect they deserve. Contact us here or call 352-306-3261 to get help today.