Tag Archives: Florida Probate Law

A common estate planning question is what (if any) assets are handled outside of probate?

There are a number of different kinds of properties that may pass outside the provisions of your Will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a Will. However, if you don’t have a beneficiary named if the beneficiary named is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.

Certain bank and brokerage accounts will also pass outside your Will. For instance, payable-on-death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Will.

You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

The Law Office of Debra G. Simms, will be glad to assist you with estate planning and ways to avoid probate. Call us today at (386) 256-4882.



Florida Probate Law

FL Probate LawThe probate is a process supervised by the court, which deals with transferring the property of the deceased to its legal heir. As per law, the assets are first used to pay the expenses of the probate proceedings, then to pay off any outstanding debts on the decedent and the balance is then distributed among his heirs or beneficiaries.

The probate process varies from state to state. Florida too has its specific probate rules that define the guidelines for the process in the state. There are three ways in which you can file a probate in the state of Florida.

Transferring assets without probate

In case the deceased left behind a very small fortune, the beneficiaries are allowed to inherit the property without any probate proceedings. If the beneficiary has paid all of the final expenses of the decedent such as final illness and funeral costs, he has the right to get reimbursed for the same from the deceased property, provided the two qualifications are met:

  • The decedent’s property does not involve any real estate.
  • The fortune left by the deceased is not being claimed by the creditors for paying of any outstanding debts and is not exceeding the amount of the final expenses paid by the beneficiary.

To avail the reimbursement, the beneficiary is required to fill a ‘Disposition of Personal Property without Administration’ form that is available on the websites of several circuit courts of Florida. You are also required to submit itemized receipts and bills corresponding to the medical expenses that you have made in the final 6 months of the decedents life and also for his funeral.

Transferring assets by Summary Administration

The beneficiary is qualified for this type of probate, if the decedent had died at least two years back or the value of the probate estate (excluding the non probate property) is not more than $75,000.  The non probate property can be distinguished as:

  • Assets that are attributed to a living trust.
  • Property jointly held by a couple, such as a joint savings account, or a house that had shared tenancy by both of them.
  • An asset that has already been designated to the beneficiary for example a life insurance policy.

The law requires the beneficiary to fill up a ‘Petition for Summary Administration’ form and testify that there are no outstanding debts against the property.

Transferring assets through Formal Administration

A regular probate proceeding involves the beneficiary filing a claim petition to the deceased property, in the local circuit court. The court issues ‘Letters of Administration’ to the representative of the estate. The Florida probate rules state that the beneficiary is also required to hire a lawyer or an attorney unless he is the one and only beneficiary of the property. The property is then distributed as per the clauses in the will left by the decedent. However, in the event of the absence of a will, the Florida intestacy law has the right to determine how the property would be distributed among the beneficiaries.

Florida as a state has also set out statutory fee scales for the lawyers involved in the proceedings of a probate, making it easier for the people to estimate the legal expenses of such a proceeding. For proficient legal advice in Volusia County, New Smyrna Beach, Port Orange, Daytona and surrounding areas, visit https://simmslawfirm.com/.

To contact Florida attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Probate is the court process for passing ownership of a deceased person’s assets to the beneficiaries. It is also necessary to wind up the decedent’s financial affairs and make sure all the decedent’s creditors are paid.

Probate Assets

Probate assets are property (real and personal) that the decedent owned in his or her sole name on the date of death. They do not include bank or investment accounts that are held jointly with right of survivorship with another individual or accounts that are payable or transferable on death to another. They also do not include a life insurance policy or retirement account that is payable to a specific beneficiary.

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances when the amount of the assets is very small.

Florida probate law: formal administration and summary administration

In a formal probate administration, the required documents are filed with the Clerk of the circuit court in the county where the decedent lived at the time of his or her death. The Circuit Court judge assigned to the case signs all Probate Orders and presides over hearings in the matter. If there is a Will, the judge approves the Will and appoints the Personal Representative named in the Will. If there is no Will (this is called “intestacy”), the judge appoints the surviving spouse or another family member to be the Personal Representative.

The Personal Representative is in charge of the administration of the decedent’s probate estate and has a legal duty to administer the probate estate pursuant to Florida law. In most cases the Personal Representative will be required to be represented by an Attorney who will provide legal advice throughout the process. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be unfamiliar to non-attorneys. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida is not more than $75,000, and if the decedent’s debts are paid. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Florida Probate Law

There are a number of reasons to be wary of Probate. Here are some of those reasons.

1. Probate can be expensive The legal fees can eat up a chunk of your estate, and the costs can go up significantly for larger estates.

2. Probate can tie up an estate. The length of time depends on how complicated the case is and whether anyone is objecting. Even short delays can hurt beneficiaries. Assets may be completely unavailable until the probate is opened and and personal representative (called an executor in some states) is appointed. This can really hurt a spouse and young kids, or those who are called upon to advance funds for funerals and attorneys.
3. Probate also raises privacy concerns because it puts the will into public record. Some people may not want others to know to whom they left their assets.

Responding to these concerns, many states have enacted streamline procedures, at least for small estates. In Florida, for instance, estates under $75,000 (not including the primary residence, the family car, and household belongings) may be eligible for a Summary Administration.

Way to Avoid Florida Probate

Other ways to avoid Probate is to keep assets out of Probate’s reach.

Here are some of the most common and least expensive ways to do so.

1. Create and fund a revocable living trust. Living trusts have become more and more common and really coming to the fore in estate planning. The average cost for a living trust for a married couple is $1,500.00. This can save thousands of dollars of probate costs.

2. Payable on Death Accounts or Transfer on Death Accounts. There is no cost to doing this, it’s just a matter of setting up your bank and brokerage (non-retirement) accounts in this way.

3. Beneficiary Designations. For Life Insurance, Retirement Accounts, and Annuity type financial products, you can simply fill out a form which designates your primary and secondary beneficiaries. Doing this will avoid these assets from passing to your estate and requiring a Probate before they can be distributed.

4. Transfer on Death Deeds. This is the latest trend in estate planning, and allows real property to pass directly to the named transferee(s) upon the property owner’s death. Like a Transfer on Death Bank Account, the property transfers outside of a Will and is not subject to Probate.

The upcoming blog posts will explore these ways to avoid probate. But, don’t do it yourself. DYI is never a good idea in estate planning. Contact a lawyer to make sure your documents are bullet proof.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667