Probate may sound like an unfamiliar and complex term for grieving families who have just lost their loved ones. The last thing you need while dealing with the stress of a funeral is to worry about complicated legal procedures. However, probate can also be a positive experience for many families, especially when it comes to inheriting assets thoughtfully left behind by passed relatives. Gain an understanding of this process, and you may feel comfortable about the road ahead. So, what happens when a Will goes through probate in Florida? What steps do you need to take? What kind of issues might you face? These are all questions you might want to ask an elder law firm in Florida.

Is Probate Mandatory in Florida? 

While not strictly mandatory in all cases, probate is extremely common in Florida. While other jurisdictions may allow families to avoid probate for many reasons (including having a low-value estate), the Sunshine State tends to be more strict. 

That being said, it is theoretically possible to avoid probate if you pass away with only “joint tenancy” assets and beneficiary designation. An example of a joint tenancy asset is a home owned by two spouses. If one spouse dies in this situation, the home passes to the other spouse automatically, and with no need for probate. 

A beneficiary designation is a type of estate planning tool that allows you to “assign” certain assets to relatives (or whoever else) without a Will. This strategy is most common with financial assets like bank accounts, stock portfolios, and life insurance. 

Another estate planning tool that helps you avoid probate is a trust. However, this strategy only helps trust assets avoid probate. You still need a Will, as this document instructs the court to follow your trust instructions. In the case of a pour-over Will, it also instructs the court to immediately transfer any leftover assets to the trust when you pass. 

In conclusion, most families will probably have to go through probate. Although certain strategies may help you limit the effects of probate, some variation of this process is effectively required. This is especially true with high-net-worth or complex estates. 

The Role of the Personal Representative

One of the most important people in the probate process is the “personal representative.” You might have also heard the term “executor,” which other jurisdictions use. Either way, this individual takes on many responsibilities during probate. The decedent (the person who passes away) chooses this individual when writing their Will. A personal representative might be a relative, a friend, or some kind of financial/legal professional. 

The personal representative starts by notifying all of the named beneficiaries. This may be more challenging than it seems at first, especially if people move out of Florida or the country. 

Once the personal representative tracks down all these individuals, there may be an opportunity for them to challenge the validity of the Will. In an ideal world, this never happens. However, sometimes these concerns are legitimate. For example, a relative might suspect that the decedent’s Will has been fraudulently altered by a malign actor. A Will may also become subject to a legal challenge if there are doubts about the decedent’s mental capacity when they signed their Will. 

Assuming there are no challenges, the personal representative needs to assess and locate all of the various assets in the decedent’s estate. This includes not only assets specifically named in the Will, but also everything else. For example, someone might leave specific assets to four beneficiaries and then say that “everything else” should go to the fifth. 

Locating assets can be challenging enough, but determining their value can be even more challenging. For example, a decedent might leave behind a substantial collection of fine art. To determine the value of this collection, a professional art appraiser might be required. Other assets might require equally complicated (and often costly) appraisal methods. 

Once the value of the estate has been determined by the personal representative, they must also calculate any liabilities left behind by the decedent. Dying with outstanding debts is extremely common, even among the wealthy. The personal representative must resolve these debts before distributing the remaining assets to the beneficiaries. 

Some estates might have more liabilities than assets. In this situation, the beneficiaries generally receive nothing. In other cases, personal representatives must follow a process called “asset abatement” to determine how to resolve debts. Asset abatement laws indicate which debts get priority and which assets should be liquidated first in order to resolve these debts. 

At this point in time, the personal representative can go ahead and distribute the remaining assets to beneficiaries. At this point, the personal representative “closes” the estate, and the probate process ends. 

What if There Was No Will?

If the decedent fails to write a Will before passing away, probate occurs in a different way. In this situation, the laws of “intestate succession” apply. This is a pre-determined formula that dictates who should inherit the estate if someone passes away without a Will. 

Essentially, the spouse of the decedent stands to receive most of the assets in most cases involving intestate succession. In Florida, even if the decedent leaves children behind, the spouse still usually inherits 100% of the assets. If the decedent leaves behind children and no spouse, the children generally inherit everything. 

Learn More About Probate in Florida With Elderly Care Law Firm 

People have questions about probate for many reasons. Some raise these concerns during the estate planning process, hoping to implement strategies that help their loved ones avoid probate. Others only encounter this issue when their relatives die and leave Wills behind. Whatever the case may be, an elder law firm in Florida may be able to help. A consultation gives you the chance to ask questions about unique issues your family is facing. You can also use this meeting as an educational opportunity, and your lawyer can explain the probate process in more detail. Consider continuing this conversation alongside Elderly Care Law Firm today.